practice directives - saflii · into effect on 1 september 2015. 1.4 amendments to the practice...

PRACTICE DIRECTIVES

Of

THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

and

LIMPOPO LOCAL DIVISION,

THOHOYANDOU

NOTICE

TO: ALL JUDGES, LIMPOPO DIVISIONS,

ALL REGISTRARS, LIMPOPO DIVISIONS;

DIRECTOR OF PUBLIC PROSECUTIONS, LIMPOPO;

ADOVCATES AND ATTORNEYS.

1. Section 6(1)(e) of the SUPERIOR COURTS ACT 10 OF 2013 (“the Act”)

assented to on 12 August 2013, establishes a Limpopo Division of the High

Court of South Africa, with its seat in Polokwane.

2. In order to effectively and efficiently manage the court rolls, the Gauteng

Division has over the years issued a number of practice directives which

have now being published as a Manual.

The first group of Judges in these new Divisions were based in Gauteng

Division and are acquainted with the Gauteng Division Practice Directives.

3. It is therefore logical, as the first set of practice directives of these new

courts, to extend the Gauteng Division Practice Manual to apply in these

courts. However, because of the difference in the case load, infra-structure

and personnel, it is appropriate to commence with an amended version of

the Manual, suitable for the existing conditions in the new Divisions.

4. I therefore publish these practice directives as the first set of directives for

the Limpopo Division in Polokwane as well as the local seat of the Limpopo

Division in Thohoyandou. As stated in the introduction to the Gauteng

Division Practice Manual:

“The provisions set out in the practice manual are not rules of

court. It does not displace or amend rules of court. It merely

tells practitioners how things are done in this court.”

5. It is therefore essential that for the efficient and effective conduct of business

in the courts, qualitative and speedy delivery of the administration of Justice

to the public, ALL ADMINISTRATIVE PERSONNEL IN THE COURTS

AS WELL AS PRACTITIONERS MUST SCRUPULOUSLY ADHERE TO

THESE PRACTICE DIRECTIVES.

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1 - APPLICATION OF THE PRACTICE DIRECTIVES

1.1 These practice directives sets out the High Court practice in the Limpopo Division

and Local Division of the High Court of South Africa.

1.2 As such it seeks to inform how the courts in this high court function. It also seeks

to obtain uniformity amongst judges in respect of practice rulings. It must be

emphasized that no judge is bound by practice directives. Accordingly, the

practice directive is not intended to bind judicial discretion. Nonetheless, it should

be noted, that the judges of this high court strive for uniformity in the functioning of

the courts and their practice rulings. The practice directive thus sets out what can

be anticipated occurring, in the normal course of events, on any issue dealt within

the practice directive.

1.3 This practice directive supersedes all previous practice directives and will come

into effect on 1 September 2015.

1.4 Amendments to the practice directives can only be made by the Judge President

or the Deputy Judge President after consultation with the other judges in the

Limpopo Division of the High Court of South Africa.

1.5 Reference in these directives to the rules, is a reference to the Uniform Rules of

Court published in Government Notice R48 of 12 January 1965, as amended, and

the Transvaal Rules.

1.6 Reference in these directives to “counsel” includes an advocate and an attorney

who appear in court or before a judge in chambers to represent a litigant.

Reference in this practice directive to “legal representative” means a litigant‟s

attorney of record and includes a party appearing in person.

2 - COURT TERMS

2.1 The terms of the Limpopo Division and Limpopo Local Division will be published

from time to time to coincide with court terms of all the Divisions of the High Court

of South Africa as determined by the Office of the Chief Justice.

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3 - COURT RECESS

3.1 The Judge President determines the allocation of recess duty which the judges of

the division must perform during recess. The Judge President or the most senior

judge available further directs in which courts the judges who are on duty, sit.

3.2 Subject to 3.3 below, only unopposed motion court matters, unopposed divorce

actions, opposed rule 43 applications without complexity, urgent applications and

bail appeals will be heard during recess.

3.3 Save for urgent applications no matters at all may be enrolled for hearing from 25

December to 2 January of each year.

3.4 Subject to any direction by the Judge President or the Deputy Judge President or

the senior judge on duty from time to time during the recess, allocates other

matters requiring determination during recess to the judges on duty.

3.5 During recess automatic reviews are distributed equally amongst the judges on

duty, except that the judge sitting in the urgent court will not be allocated reviews

during the entire week.

4 - LEGAL REPRESENTATIVE‟S DRESS

4.1 Legal representative is required to be properly dressed. If not properly dressed

they run the risk of not being “seen” by the presiding judge.

4.2 Proper dress for junior counsel comprises:

4.2.1 A black stuff gown.

4.2.2 A plain black long sleeved jacket, which has both a collar and lapels (or

sleeved waistcoat, similar to the one worn by English barristers). The

jacket must have, for closing, one or two buttons at the waist. The

buttons must be black.

4.2.3 A white shirt or blouse closed at the neck.

4.2.4 A white lace jabot or white bands.

4.2.5 Dark pants or skirt.

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4.2.6 Black or dark closed shoes.

4.3 Proper dress for senior counsel comprises:

4.3.1 Senior counsel‟s gown.

4.3.2 Senior counsel‟s waist coat.

4.3.3 White shirt or blouse closed at the neck.

4.3.4 White lace jabot or white bands.

4.3.5 Dark pants, stripped charcoal pants for senior counsel or black skirt.

4.3.6 Black or dark closed shoes.

4.4 Legal representatives must ensure, when appearing in court, that their waist

coats or jackets, as the case may be, are buttoned up.

4.5 It is not proper for a legal representative to enter court not fully robed as set out

in paragraph 3 and 4 supra. It follows that a legal representative should not robe

in court.

4.6 On attending a judge‟s chambers during the hearing of a case, counsel must be

dressed as set out in paragraphs 3 and 4 above. On attending a judge‟s chambers

otherwise than during the hearing of a case, counsel must be properly dressed.

5 - COURT SITTINGS

5.1 Save as set out below, all the courts of the Division will commence sitting at 10:00.

The courts adjourn at 11:15 and resume sitting at 11:30. The courts adjourn at

13:00 and resume sitting at 14:00. The courts adjourn for the day at 16:00.

5.2 Counsel must be punctual in their attendance in court at the aforesaid times.

5.3 Notwithstanding paragraph 5.1 above, it should be noted, that:

5.3.1 Applications for leave to appeal are usually enrolled for hearing from

09h30 or 14h00.

5.3.2 The handing down of written reserved judgments may be set down from

09h30.

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5.3.3 Criminal trials will commence at 9h00.

5.4 The presiding judge may, at his/her discretion, deviate from the times set out

above.

6 - CIVIL TRIALS

6.1 Briefing of Counsel

6.2 Bundles of documents

6.3 Case management

6.4 Closure of the trial roll

6.5 General

6.6 Hearing duration

6.7 Pagination, indexing, binding and general preparation of papers

6.8 Part-heard trials

6.9 Preferential trial date

6.10 Pre-trial conference

6.11 Roll call

6.12 Settlement agreements and draft orders

6.1 BRIEFING OF COUNSEL

6.1.1 Legal representatives must ensure that counsel are briefed timeously to

enable counsel to consult and be prepared to conduct the trial on behalf

of the client.

6.1.2 The failure to brief counsel timeously will normally be regarded as a valid

reason not to allocate a matter to a court for trial.

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6.2 BUNDLES OF DOCUMENTS

6.2.1 Where a party or the parties to a trial intend utilizing documents in their

conduct of the trial such documents must be collated, numbered

consecutively and suitably bound.

6.2.2 Each bundle must be indexed. The index must briefly describe each

document in the bundle as a separate item.

6.2.3 The parties should preferably agree upon a joint bundle of documents.

Where the parties are unable to agree upon a joint bundle, the parties

must agree which party‟s bundle shall be the dominant bundle. The

subservient bundle or bundles must not contain documents contained in

the dominant bundle or bundles.

6.2.4 The documents should not be bound in volumes of more than 100

pages.

6.2.5 The bundle of documents must be bound in a manner that does not

hinder the turning of pages and which enables it to remain open without

being held open.

6.2.6 The parties must agree prior to the commencement of the trial upon the

evidential status of the documents contained in the bundle. The

agreement must be contained in a pre-trial minute. The agreement must

also cover the issue as to which documents will be part of the record

before the court, in the eventuality of an appeal.

6.2.7 If unnecessary documents are included in the bundle the court may on

the application of any party to the trial, or mero motu, make a punitive

cost order in respect thereof.

6.2.8 Legal representatives must, prior to the date of the trial, seek and obtain

proper instructions from their clients in order to instruct counsel to

properly conduct the trial.

6.2.9 The failure by legal representatives to seek and/or obtain proper

instructions will normally be regarded as a valid reason not to allocate a

matter to a court for trial.

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6.3 CASE MANAGEMENT

6.3.1 Any party to a trial who is of the opinion that by reason of its complexity,

long duration or any other reason, the trial requires case management,

shall deliver a letter to the office of the Deputy Judge President or the

most senior judge available. The letter must set out:

6.3.1.1 The names of the parties to the trial and the case number.

6.3.1.2 The nature of the dispute.

6.3.1.3 An estimate of the probable duration of the trial.

6.3.1.4 The reason why the party is of the opinion that the trial requires

case management.

Proof that a copy of this letter has been forwarded to the other party or

parties in the trial must be provided.

6.3.2 Any party who is in receipt of such a letter and who wishes to make

representations in respect thereof may do so by forthwith delivering a

letter to the office of the Deputy Judge President or most senior judge

available. A copy of the letter must be delivered to all other parties to the

trial and proof thereof must be provided.

6.3.3 The Judge President or most senior judge available will advise the

parties of the outcome of the request.

6.3.4 In the event of the request for case management being granted, the

Deputy Judge President or most senior judge available shall appoint a

judge to undertake the case management of the trial.

6.3.5 On the appointment of the judge as aforesaid:

6.3.5.1 All interlocutory applications relating to the trial, will, after

consultation with the Deputy Judge President or the most

senior judge available, as far as possible, be heard by that

judge.

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6.3.5.2 Any party to the trial, on notice to all other parties to the trial,

may apply to the judge for directions as to the conduct of the

trial. The judge may furnish such directions or direct that an

interlocutory application be brought.

6.3.5.3 The appointed judge may direct that one or more pre-trial

conferences be held before him or in his absence.

6.4 CLOSURE OF THE TRIAL ROLL

6.4.1 The trial roll closes 5 days preceding the allocated trial date where after

access to the court file will not be permitted.

6.4.2 The prohibition of access to the court file continues for the duration of the

trial, save with the leave of the trial judge.

6.4.3 Notwithstanding the aforegoing, attention is drawn to the requirement in

respect of pagination, indexing and binding of papers which must occur

not less than ten (10) days prior to the date allocated for the calling of the

roll call.

6.5 GENERAL

6.5.1 Legal representatives must ensure that they are available for the entire

duration of the trial. The failure to do so will result in legal

representative‟s conduct being referred to the relevant society or

association of which legal representative is a member for disciplinary

action.

6.5.2 A postponement of a trial will normally not be granted because the legal

representative is not available for the trial or for the entire duration of

the trial.

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6.5.3 Any matter which may affect the continuous running of the trial to its

conclusion must be disclosed at roll call.

6.6 HEARING DURATION

6.6.1 A trial is designated:

6.6.1.1 “A special trial” - if it is anticipated that it will last 5 (five) or

more days.

6.6.1.2 “Of long duration” - if it anticipated that it will be for duration of

3 - 5 days.

6.6.1.3 Trials to last more than 3 days to be set down for hearing

on a Monday or Tuesday.

6.6.2 If any party to a trial is of the view that a trial qualifies as a special trial,

that party shall deliver a written application to the office of the Judge

President or the most senior judge available for the allocation of a

special trial date. The letter must set out:




6.6.2.4 That a pre-trial conference in terms of rule 37 has been held

and a copy of the relevant minute must be annexed to the

letter.

6.6.3 The Deputy Judge President or the most senior judge available shall

inform the parties in writing of the date allocated for the trial upon receipt

of the letter that complies with 6.6.2 above.

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6.6.4 If any party to a trial is of the view that a trial will be of long duration that

party shall deliver at least 10 (ten) but not more than 20 days before

the trial date a letter to the office of the Deputy Judge President or the

most senior judge available. The letter must set out:




6.6.4.4 That a pre-trial conference has been held and a copy of the

relevant minute must be annexed to the letter.

6.6.5 If the letters referred to in paragraphs 6.6.2 and 6.6.4 above are not joint

letters by all the parties to the trial, proof that copies of the letters have

been forwarded to the other party or parties to the trial, must be

provided.

6.6.6 Any party who is in receipt of a letter referred to in paragraphs 6.6.2 and

6.6.4 above and who wishes to make representations in respect thereof

may do so by forthwith delivering a letter to the office of the Judge

President or the Deputy Judge President or the most senior judge

available as the case may be. A copy of this letter must be delivered to

all other parties to the trial and proof thereof must be provided.

6.7 PAGINATION, INDEXING, BINDING AND GENERAL PREPARATION OF

PAPERS

6.7.1 The plaintiff/defendant shall, when applying for a trial date and also

not less than 10 (ten) days prior to the date allocated for the hearing of

the trial:

6.7.1.1 Collate, number consecutively and suitably bind all the

pleadings relating to the trial as a separate bundle and ensure

that they are in the court file.

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6.7.1.2 Collate, number consecutively and suitably bind all the notices

relating to the trial as a separate bundle and ensure that they

are in the court file.

6.7.1.3 Collate, number consecutively and suitably bind all pleadings

which were amended after delivery thereof.

6.7.1.4 Collate, number consecutively and suitably bind the pre-trial

minute/s and all documents relating thereto.

6.7.1.5 Prepare and attach an index to the pleadings bundle, the

notices bundle, the pre-amendment pleadings bundle and the

pre-trial bundle respectively. The index must briefly describe

each pleading, notice or document as a separate item.

6.7.2 In binding the pleadings, notices and documents, care must be taken to

ensure that the method of binding does not hinder the turning of pages

and the bundle should remain open without being held open.

6.7.3 The pleadings, notices and documents should not be bound in volumes

of more than 100 pages.

6.7.4 The pleadings bundle must only contain the original pleadings (as

amended, if applicable).

6.7.5 If a document or documents attached to the pleadings, or contained in

the bundles as referred to in paragraph 6.7.1, is or are:

6.7.5.1 In manuscript, or

6.7.5.2 Not readily legible

the party filing such document shall ensure that legible typed copies of

the documents are provided.

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6.8 PART-HEARD TRIALS

6.8.1 As a general rule, part-heard trials should be avoided. Accordingly no

trial should be commenced with where any issue or consideration exists

to the knowledge of counsel that would interfere with the completion of

the trial.

6.8.2 A judge hearing a trial will be most reluctant to postpone a trial which will

result in a part-heard trial.

6.8.3 Where a trial is part-heard, a date for the continuation thereof must be

applied for by delivering a letter to the registrar who shall forward it to the

Judge President or most senior judge available. This letter must set out:

6.8.3.1 The names of the parties to the action and the case number.

6.8.3.2 The name of the judge before whom the trial became part-

heard.

6.8.3.3 The date when the trial became part-heard.

6.8.3.4 An estimate of the probable duration for the completion of the

trial.

6.8.3.5 Whether a copy of the record of the part-heard portion of the

trial is available.

6.8.4 If the letter referred to in the previous paragraph is not a joint letter from

all the parties to the trial, proof that a copy of the letter has been

forwarded to the other party or parties to the trial, must be provided.

6.8.5 A party who is in receipt of a letter referred to in paragraph 6.8.4 above,

and who wishes to make representations in respect thereof, may do so

forthwith by delivering a letter to the office of the Registrar. A copy of the

letter must be delivered to all other parties to the trial and proof thereof

must be provided.

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6.8.6 The Judge President or the most senior judge available shall through the

registrar, inform the parties in writing of the date for the completion of the

trial.

6.9 PREFERENTIAL TRIAL DATE

6.9.1 A request for a preferential trial date must be made only after following

the procedure for the allocation of a trial date as set out in Transvaal

Rule 7.

6.9.2 A request for a preferential date is made by delivering a letter to the

registrar who shall forward it to the office of the Judge President or most

senior judge available. The letter must set out:




6.9.2.4 The motivation for the allocation of a preferential date.

6.9.3 If the aforementioned letter is not a joint letter by all the parties to the

trial, proof that a copy of the letter has been forwarded to the other party

or parties to the trial, must be provided.

6.9.4 Any party who is in receipt of a letter referred to in paragraph 6.9.2

above, and who wishes to make representations in respect thereof, may

do so forthwith by delivering a letter to the office of the Judge President

or most senior judge available.. A copy of the letter must be delivered to

the other party or parties to the trial and proof thereof must be provided.

6.9.5 The Judge President or most senior judge available shall inform the

parties in writing of the outcome of the request. The party who

requested the preferential trial date may then approach the registrar for

the allocation of such a preferential trial date.

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6.9.6 After being informed of a trial date, all the parties to the trial must comply

with Transvaal Rule 7(5). The letter from the Judge President or most

senior judge available allocating the preferential trial date must be

attached to the Notice of Set down delivered in terms of rule 7(5).

6.10 PRE-TRIAL CONFERENCE

6.10.1 A pre-trial conference as contemplated in rule 37 must be held in every

matter which is to proceed to trial.

6.10.2 In order to ensure that it is effective, a pre-trial conference must ideally

be held after discovery and after the parties have exchanged documents

as contemplated in rule 35. In the event of discovery being made after

the holding of a pre-trial conference, a further pre-trial conference must

be held after such discovery and exchange of discovered documents.

6.10.3 In claims for damages, whether delictual or contractual, and matters

where expert notices and summaries must be delivered the following will

apply:

6.10.3.1 Within 10 (ten) days from the date the pleadings are

considered to be closed in terms of rule 29 the plaintiff shall

deliver a notice as contemplated in rule 37(2)(a) to hold a pre-

trial Conference (the 1st pre-trial conference).

6.10.3.2 If the plaintiff fails to comply with paragraph (1) above, the

defendant shall within 10 (ten) days after the expiration of the

said 10 (ten) day period deliver such a notice.

6.10.3.3 The purpose of the first pre-trial conference is to facilitate a

settlement of the merits and at that pre-trial conference the

parties shall do everything in their power to achieve a

settlement.

6.10.3.4 If the parties settle the merits liability of the matter they shall

state whether an appointment of damages applies or not and, if

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so, in what percentages. The issue of causation should also

be discussed.

6.10.3.5 If the parties do not settle the merits of the matter: and they

agree on separation of certain issues, a preferential trial

date will only be allocated by the Registrar if:-

6.10.3.5.1 The pre-trial minute shows plaintiff(s) version

supporting the claim and defendant(s) version and

defence to the claim:-

(i) Clearly and concisely, sets out their clients‟

versions of how the incident giving rise to

the action occurred;

(ii) Facts which are common cause and

exactly what are the triable issues;

(iii) If there are any registered or recorded

claims or actions arising out of the same

incident and their status;

(iv) Notices in terms of Rule 36(9)(a) and

36(a)(b), if any, in respect of merits

together with joint minutes shall have been

served and filed;

(v) The estimated number of witnesses to be

called by each party and

(vi) The probable estimation of the duration of

trial must be agreed upon by the parties;

6.10.3.5.2 The attorneys must prepare and file at court a pre-

trial minute within 10 days of the pre-trial

conference. Should any party fail to sign minutes

of the pre-trial minute served and not object

thereto in writing within 10 days after receipt, the

minute shall be presumed to reflect what was

discussed at the pre-trial conference.

6.10.3.6.1 In matters where the matter is to proceed on

merits or liability only and the opponent (s) have

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not signed the minutes of the pre-trials conference,

the party seeking a preferential trial date shall

apply to the office of the DJP and annex the

minutes of the ordinary said preferential

conference. The opponent must be served or

copied with such an application for a preferential

or ordinary date.

6.10.3.6.2 The court may authorise separation of merits and

quantum in accordance with rule 33 if it is

convenient and the quantum is not ready to be

dealt with.

6.10.3.6.3 If the merits and quantum remain separated, any

of the parties may apply to the Registrar for the

allocation of a preferential/ordinary trial date on the

merits only after the court file shall have been

indexed and paginated. The minute lf the pre-trial

conference must be annexed to the application for

a preferential/ordinary trial.

6.10.3.6.4 If the Registrar is not satisfied that a proper pre-

trial minute complying with clause 3.5.1 (above)

the court file will be referred to the Deputy Judge

President or a Judge designated by him or her to

first certify that the matter to be trial ready before a

trial date can be allocated.

6.10.3.6.5 If the Deputy Judge President (or a judge

designated by him/her) he/she will direct that a

further pre-trial conference (the 2nd pre-trial

conference) will be held before him or her or a

judge designated by the Deputy Judge President,

who may, after such pre-trial conference, authorise

the allocation of a preferential trial date on the

merits only.

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6.10.4 In matters where the merits and quantum have not been separated or in

matters to proceed on quantum only, a trial date shall not be allocated

unless;

6.10.4.1 The parties shall have filed a pre-trial conference minute

reflecting that they genuinely endeavoured to achieve the

objects of Rule 37 i.e. defining triable issues, curtailing the

proceedings, filing the relevant experts‟ reports and joint

minutes where they are required.

6.10.4.2 If any of the parties is of the view that the matter is ready for

trial such a party should apply by noting the matter in the

relevant register kept in the Registrar‟s office and furnish the

Registrar with a court file being properly collated, numbered

consecutively and suitably secured all pages of the pleading

notices and other documents in the court file, together with the

pre-trial minute which shall further deal with matters shown on

in annexure E in the schedule hereto.

6.10.4.3 The Registrar shall then distribute the said file to the office of

the Deputy Judge President where they will be distributed to

various Judges who shall hold a conference as contemplated

by Rule 37(8) before a Judge. The Registrar or the secretary of

the DJP shall notify the parties about the dates and time of the

further pre-trial to be held in the presence of the Judge.

6.10.4.4 The parties may agree to allow advocates „fees for attendance

of any of the stages of the pre-trial procedures in terms of this

directive, failing which the court may do so at the trial.

6.10.4.5 The Registrar will only allocate a date of hearing if the Judge

has certified a matter trial ready in respect of triable issues in

dispute reflected in the minutes of the pre-trial.

6.10.4.6 Each party to the action proceedings should file a practice note

at least three (3) days before the allocated date of hearing.

The practice note shall set out:-

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1. Name of the legal representatives and contact details;

2. Date of hearing;

3. Duration;

4. Nature of the matter;

5. Issues(s);

6. Any prospects of settlement

6.10.4.7 If it appears at the roll call:-

6.10.4.7.1 that the parties have seriously endeavoured to

narrow the issues and explore settlements;

6.10.4.7.2 That there are no outstanding requests for

admissions or particularity and no outstanding

requests for documents;

6.10.4.7.3 that, where applicable, the experts have met and

produced a joint minute;

6.10.4.7.4 that the trial is ready to commence immediately

and run continuously to a conclusion then the

matter will be ripe for allocation provided a Judge

is available.

6.10.5 Parties have a continuous obligation to seek to narrow issues and to

comply with the substantive requirements of Rule 37 and this manual.

6.10.6 If, after allocation of a trial for hearing, it appears to the judge presiding

that there has not been proper compliance with rule 37, and this practice

directive, the presiding judge to whom the trial has been allocated, may,

instead of commencing or continuing with the hearing of the trial, order

proper compliance with rule 37. The presiding judge may order the pre-

trial to be held either in his/her chambers or on record in open court

under his/her direction. The presiding judge will then determine the

further hearing of the trial.

6.10.7 Where a party wishes to request that a judge presides over the pre-trial

conference in terms of rule 37(8), that party shall do so by delivering a

letter to the office of the Deputy Judge President or most senior judge

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available. A copy of this letter must be delivered to all other parties to

the trial and proof thereof must appear from the letter directed to the

Judge President or most senior judge available. Any party who is in

receipt of such a letter and who wishes to make representations in

respect thereof may do so by forthwith delivering a letter to the office of

the Deputy Judge President or most senior judge available. A copy of

this letter must be delivered to all other parties to the trial, and proof

thereof must appear from the letter directed to the Judge President or

most senior judge available.

6.10.8 Where a party wishes to request that the registrar should intervene by

fixing the time, date and place for the conference in terms of rule 37(3)(b)

that party shall do so by delivering a letter to the registrar. A copy of this

letter must be directed to all other parties to the trial and the procedure

contemplated in paragraph 6.10.7 above shall apply mutatis mutandis.

6.10.9 The request for intervention by the registrar as contemplated in rule

37(3)(b), or the Judge President or most senior judge available, as

contemplated in rule 37(8), must be made timeously and preferably

before the time prescribed for the holding of the conference has expired.

6.11 ROLL CALL

6.11.1 The civil trials set down for each week will be allocated dates for hearing

on a Monday upon which a roll call would be made to allocate

matters for a specific date.

6.11.2 The registrar must not accept late documents for inclusion in any file

which is already in the judge‟s chambers. Any request for late filing of a

document must be on affidavit by the attorney, setting out the reasons

why the document could not be filed timeously and be submitted,

together with the document at the time the matter is heard during the roll

call. The judge concerned will decide whether the document will be

admitted into the file or not and whether there is no prejudice to the

opposing party.

6.11.3 It shall be compulsory for parties whose civil trials are on the list for the

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roll call on Monday, to attend the roll call and inform the Court during the

roll call as to:

6.11.6.1 The expected duration of the trial.

6.11.6.2 The number of witnesses to be called.

6.11.6.3 The pre-trial conference and minutes thereof.

6.11.6.4 The expert witnesses, if any, to testify.

6.11.6.5 Settlement attempts, if any.

6.11.6.6 State of readiness for the trial to proceed.

6.11.4 Only the matters that are ready to proceed to trial will be allocated a date

and day(s) of hearing for the week in which they are set down.

6.11.5 Any civil trial which is settled or likely to be settled will not be allocated a

date. Once allocated, any settlement may result in the forfeiture of costs

if it appears that the parties envisaged settlement and also subject to the

discretion of the presiding judge.

6.12 SETTLEMENT AGREEMENTS AND DRAFT ORDERS

6.12.1 Where the parties to a civil trial have entered into a settlement

agreement, a judge will only make such settlement agreement an order

of court if:

6.12.1.1 Legal representatives representing all the parties to the trial

are present in court and confirm the signature of their

respective clients to the settlement and that their clients want

the settlement agreement made an order of court; or

6.12.1.2 Proof to the satisfaction of the presiding judge is provided as to

the identity of the person who signed the settlement agreement

and that the parties thereto want the settlement made an order

of court.

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6.12.2 Where the parties to a civil trial Legal representatives representing all

the parties to the trial are present in court and confirm that the draft order

correctly reflects the terms agreed upon; or

6.12.2.1 Proof to the satisfaction of the presiding judge is provided that

the draft order correctly reflects the terms agreed upon.

6.12.3 Where the parties to a trial have settled before the trial date, they will be

entitled to remove the matter from the trial roll and enrol it on a special

roll call for „Draft Orders‟ that would be arranged by the Registrar.

7 - CIVIL APPEALS

7.1 Once a date has been allocated for the hearing of any civil appeal, the parties may

not agree to postpone the appeal without the leave of the Judge President, the

most senior judge available or the judges to whom the appeal has been allocated

for hearing.

7.2 In all civil appeals, the appellant‟s heads of argument must be delivered not later

than 15 (fifteen) days before the appeal is heard and the respondent‟s heads of

argument must be delivered not later than 10 (ten) days before the appeal is

heard. Supplementary heads of argument will only be accepted with the leave of

the judges presiding.

7.3 If a legal representative intend to rely on authority not referred to in their heads of

argument, copies thereof should be available for the judges hearing the appeal

and a legal representative for each other party.

7.4 In regard to the content of their heads of argument, legal representatives are

reminded of the dicta in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty)

Ltd and Another 1998(3) SA 938 SCA at 955 B-F.

7.5 Counsels‟ names and contact details, including cell phone numbers, must appear

on the heads of argument.

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7.6 When allocating a date for the hearing of an appeal, the Judge President or the

most senior judge available may direct that the parties deliver heads of argument

earlier than provided for in paragraph 7.2 above.

7.7 Simultaneously with the filing of their heads of argument counsel shall file a

practice note. The practice note shall set out:

7.7.1 Each issue that has to be determined in the appeal.

7.7.2 An extremely brief submission in respect of each such issue.

7.7.3 What portion of the record must be read.

7.8 Civil appeals court records must be prepared as follows:

7.8.1 In all civil appeals the record shall be securely bound in volumes of no

more than 100 pages. Each volume shall be consecutively paginated

and have a cover sheet reflecting:

7.8.1.1 The case number.

7.8.1.2 The names of the parties.

7.8.1.3 The total number of volumes in the record.

7.8.1.4 The volume number of the particular volume.

7.8.1.5 The court appealed from.

7.8.1.6 The names, addresses and telephone numbers of the parties‟

legal representatives.

7.8.2 The first volume of the record shall contain an index of the evidence,

documents and exhibits. The index must identify each document and

exhibit.

7.8.3 Unless it is essential for the determination of the appeal, and the parties

agree thereto in writing, the record shall not contain:

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7.8.3.1 The opening address to the court a quo.

7.8.3.2 Argument at the conclusion of the application or trial.

7.8.3.3 Discovery affidavits and notices in respect thereof.

7.8.3.4 Identical duplications of any document contained in the record.

7.8.3.5 Documents that were not proved or admitted in the court a

quo.

7.8.4 If it will facilitate the hearing of the appeal, or if requested by the

presiding judge in the appeal, the parties shall prepare a core bundle of

documents relevant to the determination of the appeal. This bundle

should be prepared in chronological sequence and must be paginated

and indexed.

7.8.5 In the event of a party failing to comply with any of the aforegoing, the

court may make mero motu, or on application of any party to the appeal,

make a punitive cost order.

7.9 If the appellant decides to abandon or not to proceed with the appeal or the

respondent decides not to oppose the appeal any longer, the registrar must be

notified thereof immediately.

8 - CRIMINAL MATTERS

8.1 Petitions for leave to appeal from the lower court

8.2 Criminal Appeals

8.3 Automatic review

8.4 Bail appeals

8.5 Reviews

8.6 Criminal Trials

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8.1 PETITIONS FOR LEAVE TO APPEAL FROM THE LOWER COURT

Subject to the provisions of and the child Act.

8.1.1 The Criminal Procedure Act now provides that an accused who wishes to

note an appeal against conviction or sentence of a lower court must first

apply to that court for leave to appeal. If such an application for leave to

appeal is unsuccessful in the lower court, the accused may “by petition

apply to the Judge President or most senior judge available of the Court

having jurisdiction” for leave to appeal (section 309B and 309C).

8.1.2 The petition from the lower court must be lodged by way of petition

procedure and not by way of notice of motion to the motion court.

8.1.3 The petition to the Judge President or most senior judge available for

leave to appeal against the conviction or sentence of the lower court

must be lodged by delivering the original and 2 (two) copies to the

registrar dealing with petitions who shall in turn distribute them to judges

in accordance with the directives given by the Judge President or most

senior judge available.

8.2 CRIMINAL APPEALS

8.2.1 Criminal appeals are enrolled by Registrar in consultation with the

office of the DIRECTOR OF PUBLIC PROCECUTIONS.

8.2.2 When giving notice of the set down of a criminal appeal, the DPP shall,

when the appeal is against conviction, specify the date by which the

appellant‟s heads of argument must be delivered and the date by which

the respondent‟s heads must be delivered. The registrar may, on the

direction of the Judge President or the most senior judge available,

where the appeal is against sentence only, specify the dates by which

heads of arguments are to be delivered by the respective parties.

8.2.3 Failure to file the heads of argument timeously will, as a general rule,

only be condoned in exceptional circumstances. Error or oversight by

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counsel and legal representatives or the latter‟s employees will rarely be

regarded as exceptional circumstances.

8.2.4 The presiding judge in the criminal appeal, the Judge President or the

most senior judge available may direct that the heads of argument be

delivered earlier than the dates referred to above.

8.2.5 Counsels‟ names, contact details, including cell phone numbers, must

appear on the heads of argument.

8.2.6 If counsel intend to rely on authority not referred to in their heads of

argument, copies thereof should be available for the judges hearing the

appeal and counsel for each party. The same should apply where

counsel intend to rely on unreported judgments.

8.2.7 In regard to the content of their heads of argument counsel are reminded

of the dicta in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty)

Ltd and Another 1998 (3) SA 938 SCA AT 955 B-F.

8.3 AUTOMATIC REVIEW

8.3.1 Criminal matters that come before the High Court on automatic review

during the court term are distributed equally amongst the judges on duty

by the Registrar as directed by the Judge President or the most

senior Judge.

8.3.2 Where a particular judge has directed a query to the magistrate who

presided in the matter on review and the magistrate has responded

thereto, the review may be referred to any other judge who shall deal

with the matter. Similarly where a particular judge has referred a review

to the Director of Public Prosecutions, and the Director‟s opinion has

been received, the review may be referred to any other judge who shall

then deal with, and if possible, dispose of the matter.

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8.3.3 Save in the case of the greatest urgency a query must be directed to the

presiding magistrate before a judge interferes with a conviction or

sentence on review. In all cases the opinion of the director of public

prosecutions must be obtained before a judge interferes with a conviction

or sentence on review.

8.3.4 Where a review, in which the judge who refers the matter is considering

the release of the accused from prison, is referred to the Director of

Public Prosecutions, the judge referring the matter should inform the

director of public prosecutions of his consideration and the reason

therefore and require a response within a stated period of time.

8.3.5 A review judgment is given by 2 (two) judges. If the 2 (two) judges

agree, the release of the accused can be achieved by way of telegraphic

communication.

8.4 BAIL APPEALS

8.4.1 Irrespective of the urgency thereof, a bail appeal is not heard in the

motion court.

8.4.2 As soon as the proceedings in the bail application and the magistrate‟s

judgment have been transcribed, application for the enrolment of the

appeal is made to the director of public prosecutions. The registrar in

consultation with the director of public prosecutions shall then apply to

the Judge President or to the most senior judge on duty, for the

allocation of a date and time for the hearing of the appeal. The director

of public prosecutions shall inform all parties of the allocated date and

time of the appeal.

8.4.3 Bail appeals are heard by a single judge.

8.4.4 If the matter is, in the opinion of the Judge President or the most senior

judge available, of sufficient urgency to warrant immediate attention, a

bail appeal may be heard before or after ordinary court hours.

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8.5 REVIEWS

8.5.1 Irrespective of the urgency thereof, a review of a magistrate‟s decision in

a criminal matter is not heard in the motion court.

8.5.2 As soon as the court papers relating to the review have been exchanged

between the parties, the applicant may make application for the

enrolment of the review to the registrar who will consult the director of

public prosecutions. The director of public prosecutions shall then

approach the Judge President or the most senior judge on duty, for the

allocation of a date and time for hearing of the review. The registrar shall

inform all parties of the allocated date and time of the review.

8.5.3 When allocating the date and time for the hearing of the review, the

Judge President or most senior judge on duty may direct when each

party is to deliver heads of argument prior to the hearing of the review.

8.5.4 The practices in regard to the binding of the papers, indexing and

paginating as set out in the chapter hereof dealing with motion court,

apply equally to the reviews.

8.5.5 Reviews are usually heard by two judges sitting in the criminal appeal

court.

8.6 CRIMINAL TRIALS

8.6.1 Criminal trials are enrolled by the registrar in consultation with the

Director of Public Prosecutions.

8.6.2 Legal representatives must ensure that they are available for the entire

duration of the trial. The failure to do so will result in counsel‟s conduct

being referred to the relevant society or association of which counsel is a

member for disciplinary action.

8.6.3 A postponement of a trial will normally not be granted because counsel is

not available for the trial or for the entire duration of the trial.

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8.6.4 Counsel shall disclose prior to the commencement of the trial any matter

which may result in the matter being unable to run continuously to its

conclusion.

8.6.5 Counsel will not be released from his/her obligation to remain in

attendance for the duration of the trial.

9 - JUDGE IN CHAMBERS

9.1 Counsel who wishes to see a judge in chambers should approach the relevant

judge‟s clerk. If the relevant judge‟s clerk is not available, another judge‟s clerk

may be approached. If no judge‟s clerk is available the court usher may be

approached.

9.2 The judge‟s clerk or usher will advise counsel if and when the meeting with the

judge will take place.

9.3 Where counsel seek to see a judge in chambers, all counsel in the matter must be

present. In view hereof it is not advisable for counsel to see a judge in chambers

where one or more of the parties are not represented by counsel.

9.4 It is not necessary for counsel who appear in a trial allocated to a particular judge,

to see that judge in chambers prior to the commencement of the trial, other than

for the purpose of introducing themselves to the judge, if they have not already

done so.

10 - JUDGES‟ CLERKS

10.1 The duties of judges‟ clerks are set out in a practice directive which is made

available to each judge‟s clerk on his or her appointment.

10.2 The judges‟ clerks must familiarize themselves with their functions as set out in the

practice manual.

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10.3 Court orders must be carefully and correctly noted by the judges‟ clerks on the

court file. If a draft order is made an order of court, judges‟ clerks must staple the

draft order onto the inside of the front cover of the court file. If the draft order

provides for the postponement of the matter or for the extension of a rule nisi, the

date to which the matter is postponed or the extended return date must be noted

on the court file.

10.4 If a judge has marked a judgment as reportable the judge‟s clerk must hand a

printed copy and an electronic copy of the judgment to the head librarian. The

head librarian will arrange for the reporting of the judgment. The indication on the

judgment that it is reportable must be signed in original on the copy of the

judgment handed to the head librarian.

10.5 If a judge has marked a judgment as being of interest to other judges, a printed

copy thereof bearing such indication signed by the judge in original must be

handed by the judge‟s secretary to the head librarian. The head librarian will

arrange for the distribution of the judgment to the judges of the division.

10.6 The judge`s clerk must hand a copy of every printed and signed judgment of

his/her judge to the head librarian who shall compile and retain an electronic

collection of all judgments delivered in the Limpopo Division and Local Division.

11 - LEAVE TO APPEAL IN CIVIL MATTERS

11.1 An application for leave in compliance with the uniform rules of court to appeal

must be filed with the Registrar in charge of civil appeals.

11.2 If the judgment in respect of which leave to appeal is sought was not handed down

in typed form when the judgment was delivered, the applicant shall forthwith take

the necessary steps to cause the judgment to be transcribed. All the other parties

to the application for leave to appeal shall forthwith be informed in writing of the

steps taken by the applicant in this regard.

11.3 If the applicant does not within 7 (seven) days of the service of the application for

leave to appeal take the necessary steps to cause the judgment to be transcribed,

the respondent‟s legal representative may take the necessary steps to ensure that

the judgment is transcribed. All the other parties to the application for leave to

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appeal shall forthwith be informed in writing of the steps taken by the respondent in

this regard.

11.4 If the judgment was handed down in typed form, or after the judgment has been

transcribed, it may be placed in the court file and the applicant may apply by letter

to the registrar in charge of civil appeals for the allocation of a date for the hearing

of the application for leave to appeal. The applicant must forthwith forward a copy

of the letter to all the other parties to the application for leave to appeal.

11.5 If the applicant does not apply for the allocation of a date for hearing of the

application for leave to appeal within a period of 7 (seven) days after the judgment

has become available, the respondent may so apply. The application is made by

directing a letter to the registrar in charge of civil appeals. At the same time the

respondent must place a copy of the judgment in the court file. The respondent

must forthwith forward a copy of the letter to all the other parties to the application

for leave to appeal.

11.6 Once the registrar in charge of civil appeals is in possession of:

11.6.1 The application for leave to appeal.

11.6.2 The judgment.

the aforesaid registrar will submit the relevant court file to the clerk of the

judge who delivered the judgment. The judge`s clerk will endorse the

date and time on which the application for leave to appeal is to be heard.

The judge‟s clerk will return the file to the aforesaid registrar.

11.7 The registrar in charge of civil appeals shall thereupon notify the parties of the date

and time so determined and shall enrol the matter accordingly. Thereafter the

aforesaid registrar shall return the court file with proof of notification of the date

and time of the hearing to the secretary of the judge who delivered the judgment

and shall confirm that the application has been enrolled.

11.8 Applications for leave to appeal are normally enrolled for 09:30 or 14:00. It is

anticipated that the application, including judgment thereon, will be concluded by

10:00 or 14:30. If the parties or any one of them envisage the application taking

longer than half an hour to be concluded, a statement to this effect must be made

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in the letters referred to above. In such a case the presiding judge may determine

another time for the hearing of the application for leave to appeal.

11.9 If none of the parties to the application for leave to appeal apply to the registrar for

the allocation of a date for the hearing of the application for leave to appeal, the

registrar in charge of civil appeals will submit the relevant court file to the clerk of

the judge who delivered the judgment. The aforesaid registrar shall indicate the

parties‟ failure to comply with the aforegoing and request a date for the hearing of

the application for leave to appeal. The clerk of the judge will endorse the date

and time on which the application is to be heard. The judge‟s clerk will return the

court file to the aforesaid registrar. Thereafter the practice set out in paragraph

11.7 shall be followed.

11.10 The availability of counsel is not conclusive in the determination of a date for the

hearing of an application for leave to appeal.

11.11 If the judge who delivered the judgment is not available for whatever reason, the

file will be submitted to the Judge President or most senior judge available.

12 – MEDIA COVERAGE OF COURT PROCEEDINGS

Applications for media coverage should be directed to the Judge President

or the Judge presiding in the said proceedings. The Registrar and the court

manager should also be served with a copy of the said application.

12.1 In the practice notice reported 2009(3) S.A.1 the Supreme Court of Appeal issued

guidelines to standardize the procedure where permission is requested to film or

record court proceedings.

12.2 The same guidelines will be applicable in the Limpopo Division and the Local

Division of the High Court of South Africa, subject to the Judge President‟s right to

add to or alter any of the guidelines.

13 - MOTION COURT

13.1 Binding of papers

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13.2 Calling of the roll of unopposed matters

13.3 Hearing of opposed matters

13.4 Third motion court matters

13.5 Matters not on the roll

13.6 Postponements

13.7 Practice note

13.8 Preparation of papers

13.9 Service

13.10 Settlement

13.11 Settlement agreements and draft orders

13.12 Stale service

13.13 Striking from the roll

13.14 Summary judgments

13.15 Urgent applications

13.1 BINDING OF PAPERS

13.1.1 Prior to the set down of the application the applicant must ensure that all

the documentation before the court for the determination of the

application is properly bound.

13.1.2 In binding the application, care must be taken to prevent that the method

of binding hinders the turning of papers.

13.1.3 The documentation should not be bound in volumes of more than 100

pages each.

13.2 CALLING OF THE ROLL OF UNOPPOSED MATTERS

13.2.1 Prior to the calling of the roll the Judge of the presiding judge will invite

counsel and legal practitioners to call matters which are to be removed

from the roll or postponed.

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13.2.2 Opposed Summary judgment and rule 43 applications which are not to

be removed or postponed as well as divorce matters, may stand down to

the end of the roll.

13.2.3 Thereafter the roll may be called page by page and counsel will deal with

their matters, including divorce matters, in order of seniority.

13.2.4 Thereafter, if not all matters have been dealt with, counsel and legal

representatives may be entitled to call their matters in order of seniority.

13.2.5 Thereafter summary judgment applications may be dealt with.

13.2.6 Finally rule 43 applications will be dealt with.

13.2.7 If a matter has to stand down after it has been called, it must stand down

until the roll has been called once, unless the presiding judge indicates

otherwise.

13.2.8 It is emphasised that the courts of the most senior judges take

precedence over the courts of more junior judges.

13.2.9 Judges may arrange the calling of matters in their specific courts other

than provided herein.

13.3 HEARING OF OPPOSED MATTERS

Opposed applications should be properly indexed and paginated 10(ten)

clear court days before the first day of the week during which the matters are

to be heard so that the senior Judge may allocate them and determine if they

are ripe for hearing.

13.3.1 All matters will be enrolled on a Tuesday for the first day of the week in

which the matters are to be heard.

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13.3.2 The senior judge will have all files at least 10 (ten) clear court days

before the first day of the week during which the matters are to be heard

and will allocate all matters at least 5 (five) court days in advance. Each

judge will then prepare his or her own roll for the week which will be

distributed to the professions.

13.3.3 Judges will, as far as possible, accommodate counsel and legal

practitioners to hear matters on specific dates.

13.3.4 As soon as a matter becomes settled or the parties agree to postpone,

the judge presiding must be informed of that fact immediately.

13.3.5 No opposed applications may be postponed to another opposed motion

court date. Instead a new date of hearing must be applied for.

13.3.6 Where the respondent has failed to deliver an answering affidavit and

has not given notice of an intention only to raise a question of law (rule

6(5) (d)(iii) or a point in limine, the application must not be enrolled for

hearing on the opposed roll.

Such an application must be enrolled on the unopposed roll. In the event

of such an application thereafter becoming opposed (for whatever

reasons),the application will not be postponed as a matter of course, but

will be referred to the Deputy Judge President or the senior Judge.

The notice of set down of such an application must be served on the

respondent‟s attorney of record.

13.4 THIRD MOTION COURT MATTERS

13.4.1 An opposed motion which is expected to require a day or more (including

the delivery of an ex tempore judgment) may not be enrolled for hearing

without the consent of the Deputy Judge President or the most senior

judge available.

13.4.2 The consent of the Judge President or most senior judge available for

the enrolment of the matter is sought in writing, a copy of which must

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simultaneously be made available to the other party or parties to the

opposed motion and must contain:

13.4.2.1 A short exposition of the nature and complexity of the

matter.

13.4.2.2 The estimated duration thereof.

13.4.2.3 An assurance that all the necessary affidavits have been

exchanged (or in exceptional cases an indication of the date

by when they will have been exchanged).

13.4.2.4 An assurance that the papers have been properly indexed

and paginated.

13.4.2.5 Proposals for the filing of heads of argument by the parties.

13.4.2.6 Suggestions as to when the application can be heard.

13.4.3 The other party or parties to the opposed motion who wish to make

representations in respect thereof may do so in writing.

13.4.4 The Deputy Judge President or the most senior judge available will

determine the date of the hearing of the aforesaid opposed motion and

furnish such directives as he deems fit in respect thereof.

13.4.5 The opposed motion must forthwith be enrolled for hearing in terms of

the determination of the Judge President or the most senior judge

available.

13.5 MATTERS NOT ON THE ROLL

13.5.1 Any matters not on the roll must only be brought to the attention of the

presiding judge of the court on whose roll the matter ought to have

appeared after the roll of the court has been called at least once.

13.5.2 Once counsel has determined that a matter is not on the roll and the

relevant court file has been located, the court file should be handed to

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the secretary of the judge presiding. The judge‟s secretary shall prepare

a list of such matters for use by the judge‟s secretary and the presiding

judge.

13.5.3 Once the matter is enrolled, the presiding judge will give directions for

the hearing of the matter.

13.6 POSTPONEMENTS

13.6.1 A motion, whether opposed or unopposed, will generally not be

postponed to a specific date. It will either be postponed sine die or

removed from the roll.

13.6.2 Where a motion has to be postponed to a specific date (e g rehabilitation

for which notice has been given) such date, in the absence of urgency,

must be to a date at least two weeks hence and confirmed with the

registrar.

13.6.3 Subsequent to the allocation of an opposed matter to a particular judge

for hearing, the clerk of the judge to whom the matter has been

allocated, must be informed in person or telephonically immediately it

becomes known that a matter is to be postponed.

3.7 PRACTICE NOTE

13.7.1 Counsel for each party in a motion which appears on the opposed roll is

to file a practice note not later than 13:00, preceding the first day of the

week in which the matter will be heard. Thursday preceding on

Monday the matter has been set down.

13.7.2 The practice note shall set out:

13.7.2.1 The name of the parties, the case number and its number on

the roll ( if known ).

13.7.2.2 The names and telephone numbers of all counsel in the

motion.

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13.7.2.3 The nature of the motion.

13.7.2.4 An indication of the issues to be determined in the application.

13.7.2.5 The relief sought at the hearing by the party on whose behalf

counsel is completing the practice note.

13.7.2.6 An estimate of the probable duration of the motion.

13.7.2.7 If the matter is urgent and, if so, motivation for the urgency.

13.7.2.8 Whether or not the papers need to be read and, if so, which

portion thereof.

13.7.3 A practice note must be filed as set out in 13.7.1 above on each

occasion the motion appears on the opposed roll.

13.7.4 When the day on which the practice note is to be filed falls on a public

holiday, such documents shall be filed on the preceding court day.

13.8 PREPARATION OF PAPERS

13.8.1 The original application, the original return of service and other original

documents comprising the application must be contained in the court file.

13.8.2 If a document or documents attached to the founding or replying affidavit

are:

13.8.2.1 In manuscript; and

13.8.2.2 Not readily legible

The applicant shall ensure that typed and legible copies of the

document or documents are provided.

13.8.3 The respondent bears the obligation referred to in the previous sub-

paragraph in respect of documents attached to the answering affidavit.

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3.9 SERVICE

13.9.1 Service is proved by filing in the court file the original return of service

which establishes the service. In the absence of an acceptable

explanation, a return of service will generally not be accepted from the

bar.

13.9.2 Where publication in the Government Gazette or newspaper of a court

order, notice or other document has to be proved, the full page of the

Government Gazette or newspaper containing the relevant order, notice

or other document must be filed. The court order, notice or other

document must be clearly highlighted. In the absence of an acceptable

explanation, proof of publication will generally not be accepted from the

bar.

13.9.3 … .

13.9.3.1 Where service is effected at the registered address of a

company or close corporation the Sheriff must state in the

return that he or she ascertained that there was a board at

the address where service was effected indicating that that

address was indeed the registered office of the company or

close corporation.

13.9.3.2 In the absence of such statement in the return of service, the

registered address must be proved by filing in the court file

an official document proving the registered address of the

company or close corporation.

13.9.4 Where service is effected at a domicilium citandi et executandi, the

original document wherein the domicilium is chosen must be in the court

file.

13.9.5 In actions or applications for the incarceration (i e imprisonment) of the

defendant or respondent, personal service of the summons or application

must be effected on the defendant or respondent. If notice of set down

of the matter has to be given to the defendant or respondent, personal

service of the notice of set down must be effected on the defendant or

respondent.

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13.9.6 When service of any document by registered post is prescribed or

authorized (in any action or application), such service is proved by the

production of an affidavit by the person who procured the dispatch of

such document, in which he/she:

13.9.6.1 Indicate the date of dispatch together with the name and

address of the addressee.

13.9.6.2 Describes the document so dispatched.

13.9.6.3 Indicates, if that be the case, that the item in question has

not been returned to the sender by the Post Office as being

undelivered, and to which he/she annexes the documentary

proof of posting of a registered article issued by the Post

Office.

13.10 SETTLEMENT

13.10.1 Prior to allocation and in respect of unallocated matters the clerk of the

senior motion court judge for the particular week must be informed

telephonically immediately it becomes known that a matter has become

settled.

13.10.2 Subsequent to the allocation of a matter to a particular judge for hearing,

the clerk of the judge to whom the matter has been allocated, must be

informed telephonically immediately it becomes known that a matter has

become settled, or where it has been agreed that the matter is to be

postponed.

13.11 SETTLEMENT AGREEMENTS AND DRAFT ORDERS

19.2.1 Where the parties to an application have entered into a settlement

agreement, a judge will only make such settlement agreement an order

of court if:

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13.11.1.1 Legal representatives representing all the parties to the

application are present in court and confirm the signature of

their respective clients to the settlement agreement and that

their clients want the settlement agreement made an order

of court;

or

13.11.1.2 Proof to the satisfaction of the presiding judge is provided as

to the identity of the person who signed the settlement

agreement and that the parties thereto want the settlement

made an order of court.

19.2.2 +Where the parties to an application have settled the application on the

terms set out in a draft order, a judge will only make such draft order an

order of court if:-

13.15.6.1 Legal representatives representing all the parties to the

application are present in court and confirm that the draft

order correctly reflects the terms agreed upon;

or

13.15.6.2 Proof to the satisfaction of the presiding judge is provided

that the draft order correctly reflects the terms agreed upon.

13.12 STALE SERVICE

15.3.1 Where any unopposed application is made 6 (six) months or longer after

the date on which the application or summons was served, a notice of

set down must be served on the defendant or respondent.

15.3.2 The notice of set down must set out:

13.12.2.1 The date and time at which the relief will be sought.

13.12.2.2 The nature of the relief that will be sought.

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15.3.3 The notice of set down must be served at least 5 (five) days before the

date on which the relief will be sought.

13.13 STRIKING FROM THE ROLL

13.13.1 If there is no appearance when a matter is called after a court has

completed its roll, it may there and then be struck from the roll.

13.13.2 If a matter has been struck from the roll, counsel in the course of the

week in which the matter was struck from the roll, may seek that the

matter be re-enrolled. The matter will only be re-enrolled if a proper

explanation for non-appearance is given. Such explanation must be on

oath.

13.13.3 If a matter has been struck from the roll it may only be re-enrolled for a

subsequent week if an affidavit explaining the previous non-appearance

is filed.

13.13.4 The negligence or ignorance of the provisions of the directive by counsel

or legal representative will not necessarily constitute an acceptable

explanation for the non-appearance.

13.13.5 Where the applicant or plaintiff has failed to file a practice note and/or

heads of argument where they are required to do so in terms of the

practice directive, the relevant matter may be struck from the roll.

13.14 SUMMARY JUDGMENTS

13.14.1 The plaintiff must paginate and index the application before it is served

and filed.

13.14.2 If the defendant files an opposing affidavit in terms of rule 32(3)(b) such

affidavit and annexures must be paginated and an updated index must

be served and filed.

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13.14.3 Due to the fact that the defendant is entitled to file any opposing affidavit

in terms of rule 32(3)(b) as late as noon on the court day but one

preceding the day on which the application is to be heard, the court will

hear the application in spite of the absence of a practice note and/or

heads of argument, save in exceptional cases.

13.15 URGENT APPLICATIONS

13.15.1 A judge is designated for the hearing of urgent applications for each

week of the year. For this purpose the week commences on Friday at

16:00 and terminates on the Friday of the next week at 16:00.

13.15.2 The normal time for the bringing of an urgent application is at 10:00 on

Tuesday of the motion court week.

13.15.3 Exceptions.

13.15.3.1 If the urgent application cannot be brought at 10:00 on the

Tuesday of the motion court week, it may be brought on any

other day of the motion court week at 10:00. The applicant

in the founding affidavit must set out facts which justify the

bringing of the application at a time other than 10:00 on the

Tuesday.

13.15.3.2 If the urgent application cannot be brought at 10:00 on any

day during the motion court week, it may be brought at

11:30 or 14:00 on any day during the motion court week.

The applicant in the founding affidavit must set out facts

which justify the bringing of the application at a time other

than 10:00 on the Tuesday and other than 10:00 of the

relevant court day.

13.15.3.3 If the application cannot be brought at 10:00 on the Tuesday

or at 10:00 on any other court day or at 11:30 or 14:00 on

any court day it may be brought at any time during the court

day. The applicant in the founding affidavit must set out

facts which justify the bringing of the application at a time

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other than 10:00 on the Tuesday and other than at 10:00,

11:30 or 14:00 on any other court day.

13.15.3.4 The aforementioned requirements are in addition to the

applicant‟s obligation to set out explicitly the circumstances

which render the matter urgent. In this regard it is

emphasised that while an application may be urgent, it may

not be sufficiently urgent to be heard at the time selected by

the applicant.

13.15.3.5 The aforementioned practices will be strictly enforced by the

presiding judge. If an application is enrolled on a day or at a

time that is not justified, the application will not be enrolled

and an appropriate punitive cost order may be made.

13.15.4 The first paragraph of relief sought in the applicant‟s notice of motion

must be for the enrolment of the application as an urgent application and

for dispensing of the forms and service provided for in the rules of court,

to the extent necessary.

13.15.5 … .

13.15.5.1 Unless the circumstances are such that no notice of the

application is given to the respondent, or unless the urgency

is so great that it is impossible to comply therewith, the

notice of motion must follow the format of form 2(a) of the

First Schedule to the Rules of Court and therefore must

provide a reasonable time, place and method for the

respondent to give notice of intention to oppose the

application and must further provide a reasonable time

within which the respondent may file an answering affidavit.

The date and time selected by the applicant for the

enrolment of the application must enable the applicant to file

a replying affidavit if necessary.

13.15.5.2 Deviation from the time periods prescribed by the Rules of

Court must be strictly commensurate with the urgency of the

matter as set out in the founding papers.

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13.15.5.3 In cases of extreme urgency, the reasonable time afforded

to the respondent to give notice of intention to oppose, is

usually not less than 2 (two) hours, excluding the hour

between 13:00 and 14:00.

13.15.6 … .

13.15.6.1 If the facts and circumstances set out in the applicant‟s

affidavits do not:

13.15.6.1.1 Constitute sufficient urgency for the

application to be brought as an urgent

application and/or

13.15.6.1.2 justify the abrogation or curtailment of the

time periods referred to in rule 6(5) and/or

13.15.6.1.3 justify the failure to serve the application as

required in rule 4, the court will decline to

grant an order for the enrolment of the

application as an urgent application and/or for

the dispensing of the forms and services

provided for in the rule. Save for a possible

adverse cost order against the applicant the

court will make no order on the application.

13.15.6.2 The aforementioned requirements will be strictly enforced by

the presiding judge.

13.15.7 … .

13.15.7.1 For the purposes of urgent applications ordinary court hours

are 10:00 to 11:15, 11:30 to 13:00 and 14:00 to 16:00 of a

court day. If a party wishes to bring an urgent application

out of ordinary court hours the presiding judge‟s clerk must

be telephoned at his/her office or on cell number:

…………………. (to provided later).

The following information must be conveyed to the judge‟s clerk:

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13.15.7.1.1 The identity of the parties.

13.15.7.1.2 Whether or not service has been or will be effected.

13.15.7.1.3 Whether or not the application is or is anticipated to be

opposed.

13.15.7.1.4 The type of application.

13.15.7.1.5 The nature of the relief sought.

13.15.7.1.6 Why it is not possible for the application to be heard during

ordinary court hours.

13.15.7.1.7 When it is anticipated the application will be ripe for hearing.

13.15.7.2 The judge‟s clerk will communicate with the judge and

thereafter advise the party when and where the application

will be heard or what directions the judge has given in

regard to the application.

13.15.7.3 When an urgent application is brought out of ordinary court

hours, the applicant must ensure that the order of the court

can be typed so that it can be signed by the presiding

judge‟s clerk.

13.15.7.4 The judge designated for the hearing of urgent applications

is not to be contacted directly.

13.15.7.5 If the judge designated for the hearing of urgent applications

directs that the application be heard in court after ordinary

court hours the judge‟s clerk shall telephone:

13.15.7.5.1 The court stenographer on urgent application

duty to arrange the stenographer‟s

attendance in court at the arranged time. The

stenographer‟s telephone number is obtained

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from the court stenographers‟ senior on the

Friday before 16:00.

13.15.7.5.2 The security officer on duty at the main

entrance of the High Court at telephone

number …………………. to arrange for the

admission of the parties to the court and for

the parties to be directed to the court in which

the court dealing with urgent matters is sitting.

13.15.7.5.3 The court stenographer on urgent application

duty to arrange the interpreter‟s attendance in

court at the arranged time. The interpreter‟s

telephone number is obtained from the

principal court interpreter on the Friday before

16:00.

13.15.8 … .

13.15.8.1 When an urgent application is brought for the Tuesday at

10:00 the applicant must ensure that the relevant papers are

filed with the registrar by the preceding Thursday at 12:00.

13.15.8.2 The registrar‟s office must ensure that the court files of all

urgent applications set down for the Tuesday at 10:00 are

brought to the clerk of the judge hearing the urgent

applications by 16:00 on the preceding Thursday.

13.15.8.3 The clerk of the judge hearing urgent applications will

prepare a roll in respect of the urgent applications to be

heard on the Tuesday at 10:00. The clerk will publish the

roll in the foyer of the High Court by no later than 10:00 on

the Tuesday.

13.15.8.4 Where an urgent application is brought for any other time

than Tuesday at 10:00, the registrar‟s office shall ensure that

the court file is brought to the clerk of the judge hearing

urgent applications as soon as possible. The judge‟s clerk

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shall prepare a roll in respect of the urgent applications to be

heard on the other days of the week. The clerk will publish

the roll in the foyer of the High Court by no later than 09:00

on the day of the hearing.

13.15.9 Save in exceptional circumstances the applicant should not frame the

relief sought in the form of a rule nisi which has in whole or in part interim

effect. Where applicable the urgent relief should be sought pending the

determination of the application.

13.15.10 … .

13.15.10.1 On the Friday of each week at 16:00 the registrar shall send

to the clerk of the judge designated for the hearing of urgent

applications for the week commencing at 16:00 on the

Friday:

13.15.10.1.1 The cellular phone provided for the judge‟s

clerk.

13.15.10.1.2 Fifteen (15) consecutively numbered court

files. (These files are to be utilized in the

event of an urgent application being brought

without a court file having been opened by

the registrar of the court).

13.15.10.1.3 An official stamp of the registrar of the High

Court.

13.15.10.2 On Friday of each week, before 16:00 the clerk of the judge

who is to take over the urgent court, must obtain from the

court stenographers‟ senior the telephone number of the

stenographer on urgent court duty for the urgent court week.

13.15.10.3 On Friday of each week, before 16:00 the clerk of the judge

who is to take over the urgent court, must obtain from the

principal court interpreter the telephone number of the

interpreter on urgent court duty for the urgent court week.

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13.15.10.4 On the first court day after any of the files referred to in

13.15.10.1.2 above have been utilized, the judge‟s clerk

shall inform the registrar of the names of the parties and the

allocated case number(s).

13.15.10.5 On the Friday morning at the conclusion of the week during

which the designated judge heard the urgent applications,

the judge‟s clerk must return the cellular telephone, the

unused numbered files and the aforesaid stamp to the

registrar.

14 - OPENING OF COURT FILES

14.1 Each proceeding is allocated a distinctive case number by the registrar. In all

proceedings the distinctive number precedes the reference to the year in which the

proceeding was registered (e g 100/2011). In appeals the distinctive number is

preceded by an “A” (e g A100/2011).

14.2 An application for leave to appeal retains the case number of the matter in which

leave to appeal is sought.

14.3 All interlocutory applications, applications related to or flowing from the main action

or application and rule 43 applications are brought in the same court file as the

main action or application and not under a new case number.

15 - PARTICULAR APPLICATIONS

15.1 Anton Pillar type orders

15.2 Admission of advocates

15.3 Cancellation of sales in execution

15.4 Change of matrimonial regime

15.5 Curator bonis

15.6 Curator ad Litem

15.7 Eviction where the Prevention of Unlawful Occupation of Land Act 1998 (No 19 of

1998), applies

15.8 Provisional sentence

15.9 Rehabilitation

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15.10 Removal of amendment of restrictions on land use

15.11 Sequestration and Voluntary Surrender of Estates

15.1 ANTON PILLER TYPE ORDERS

15.1.1 These practices apply when an order which is sought ex parte involves a

search for a movable object or the attachment thereof in order to

preserve evidence as is meant in Shoba v Officer Commanding,

Temporarily Police Camp, Wagendrift dam and another: Maphanga v

Officer Commanding, South African Police Murder and Robbery Unit,

Pietermaritzburg, and others 1995 (4) SA 1 (A) or if the item is not

identified in the papers, i e if identification is dependent upon pointing out

which is still to be made.

15.1.2 Such an application must stand on its own and not form part of an

application in which other relief is claimed. Duplication of costs is to be

minimized by incorporating evidence in one application by reference in

any other application.

15.1.3 When the applicant wishes the matter to be head in camera:

15.1.3.1 The applicant may, without being obliged to do so, prove the

reason why such a hearing is necessary in a separate

affidavit. If a separate affidavit is employed and a hearing in

camera is refused without a party or the judge having placed

reliance on the contents of the application itself, the

applicant may withdraw and remove the Anton Piller

application.

15.1.3.2 A certificate from counsel in support of a hearing in camera

is not necessary.

15.1.3.3 All steps must be taken as if the application is being set

down on the motion court roll by use of the ordinary forms

and in the ordinary manner except that the notice of set

down and application are handed to the clerk of the senior

judge on motion court duty for purpose of safekeeping and

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maintaining secrecy all in accordance with the directions of

the senior judge.

15.1.4 A Notice which accords with annexure “A” 15.1 hereto must be handed

to the person on whom the order is to be served prior to any execution of

the order.

15.1.5 …. .

15.1.5.1 Annexure “B” 15.1 represents a model order which applies

to relief along Anton Piller lines. It may be adapted

according to circumstances but the judge‟s attention must be

drawn to deviations.

15.1.5.2 Deviations from annexure “B” 15.1 must be limited to what

is necessary and must heed the following guidelines:

15.1.5.2.1 Unless the procedure is limited in case law,

undertakings to the court must be employed

to counteract injustice and avoidable

inconvenience to the respondent.

15.1.5.2.2 The order must be justifiable in terms of

South African law.

15.1.5.2.3 It must be borne in mind that it is of the

essence of an Anton Piller type order that it

results in some immediate interference with

the respondent without any prior notice (even

if a rule nisi pattern of order were to be used).

Immediate operation must be limited to what

can be fully justified by urgency or other need

for breach of the audi alteram partem

principle.

15.1.5.2.4 Relief which cannot be so justified must be

dealt with in a separate part of the notice of

motion (and where necessary in the court

order) so that the respondent has a proper

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opportunity to oppose such relief. Immediate

preserving of evidence does not imply a need

to allow the making of copies or other early

discovery without the other party having a

chance to be heard.

15.2 ADMISSION OF ADVOCATES

15.2.1 An application for admission as an advocate must, in addition to the

information required by section 3(1) of the Admissions of Advocates Act

No 74 of 1964 and rule 3A of the Rules of Court allege that:

15.2.1.1 The applicant is not arraigned on a criminal charge and has

not been convicted of a criminal offence.

15.2.1.2 The applicant‟s estate has not been sequestrated and that

no sequestration proceedings are pending.

15.2.1.3 The applicant was not found guilty in misconduct

proceedings while in a previous profession or employment

and that when any previous profession was relinquished or

employment was terminated, no misconduct proceedings

were pending.

15.2.1.4 The applicant is unaware of any fact which may

detrimentally affect the adjudication of the application.

15.2.2 … .

15.2.2.1 If the applicant is unable to make any of the allegations

aforementioned, full details of the circumstances which

preclude the allegation being made must be furnished.

15.2.2.2 If the applicant is not in possession of a degree certificate

evidencing the fact that a LL B degree or similar qualification

was awarded to him because of her or his failure to effect

payment of the tuition fees to the relevant tertiary education

institution, such fact must be fully explained and such

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candidate must provide proof to the court of any

arrangement she or he has entered into with such institution

to effect payment of any outstanding amount.

15.2.3 The registrar is to ensure that the court files containing the admission

applications are handed to the clerks of the judges hearing the

application at least two days before the hearing of the applications.

15.2.4 Applications for admissions are heard before two judges.

15.3 CANCELLATION OF SALE IN EXECUTION

15.3.1 If an application in terms of rule 46(11) is unopposed it is dealt with by

the judge before whom it comes in chambers. If the application is

opposed the application will be heard in open court.

15.3.2 The notice of motion must inter alia be served on the purchaser against

whom relief is sought. The notice of motion must inform the purchaser of

the time within which and the manner in which the applicant and the

registrar must be informed of the purchaser‟s intention to oppose the

relief sought, if any.

15.3.3 If no intention to oppose the relief sought is filed, the applicant must

depose to an affidavit stating that fact. The affidavit must be placed in

the court file before the application comes before the judge.

15.4 CHANGE TO THE MATRIMONIAL REGIME

15.4.1 The application is commenced by publication in the Government Gazette

of a notice substantially in the form of annexure “A” 15.4 hereto.

15.4.2 The report of the registrar of Deeds must be obtained before such

advertisement is placed.

15.4.3 At least 3 (three) weeks before the hearing date a copy of the notice

referred to in paragraph 15.4.1 must be forwarded to each creditor by

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registered post and must be accompanied by a letter, a copy of which

must be placed before the court, which states:

15.4.3.1 On which date and time and to which court application will

be made.

15.4.3.2 The full names of the spouses, their identity numbers and

their residential addresses and places of employment in the

preceding 12 (twelve) months.

15.4.3.3 The effect of the proposed order.

15.4.3.4 That a creditor whose interests will be prejudicially affected

by the change of marital regime may appear at the hearing

to oppose the granting of the order.

15.4.4 The name, address, amount owing to, and the cause of action of each

contingent and other creditor must be set out in the application. Proof of

compliance with paragraph 15.4.1, 15.4.2 and 15.4.3 must be proved at

the hearing of the application by the filing of a supplementary affidavit.

15.5 CURATOR BONIS

15.5.1 At the first hearing of the application for the appointment of a curator

bonis, the only relief granted is the appointment of a curator ad litem. All

other relief is postponed sine die pending receipt of the curator ad litem‟s

and the master‟s report.

15.5.2 The application is re-enrolled after the aforementioned reports have

come to hand.

15.5.3 Save in exceptional circumstances, which must be established on

affidavit, an application for the appointment of a curator bonis will not be

heard if the aforementioned reports have not been filed in the court file.

15.5.4 The consent of both the curator ad litem and the proposed curator bonis

must be annexed to the application.

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15.6 CURATOR AD LITEM

15.6.1 Where the appointment of a curator ad litem is sought to assist a litigant

in the institution or conduct of litigation, the applicant must establish the

experience of the proposed curator ad litem in the type of litigation which

the litigant wishes to institute or conduct and also of the curator bonis

who is proposed should attend to the patient‟s affairs and person.

15.6.2 Consent to act by the proposed curator ad litem must be annexed to the

application.

15.6.3 In order to preclude giving notice of the application to the prospective

defendant, the applicant should seek that the costs of the application be

reserved for determination in the contemplated trial.

15.6.4 The order sought should only permit the proposed curator to settle the

action with the approval of a judge.

15.6.5 Where the curator ad litem requires the approval of the court to settle the

action, the curator ad litem and plaintiff‟s counsel may approach the

Deputy Judge President for the allocation of a judge in chambers to

approve the settlement.

15.7 EVICTION IN TERMS OF THE PREVENTION OF ILLEGAL EVICTIONS

AND UNLAWFUL OCCUPATION OF LAND ACT, 19 OF 1998.

15.7.1 The application for eviction must be a separate application. The

procedure to be adopted (except in urgent applications) is as follows:

15.7.1.1 The notice of motion must follow Form 2(a).

15.7.1.2 The notice of motion must allow not less than 5 (five) days

from date of service of the application for delivery of a notice

of intention to oppose.

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15.7.1.3 The notice of motion must give a date when the application

will be heard in the absence of a notice of intention to

oppose.

15.7.2 After the eviction application has been served and no notice of intention

to oppose has been delivered or if a notice of intention to oppose has

been delivered at a stage when a date for the hearing of the application

has been determined, the applicant may bring an ex parte interlocutory

application authorizing a section 4(2) notice and for directions on service.

15.7.3 When determining a date for the hearing of an eviction application,

sufficient time must be allowed for bringing the ex parte application, for

serving the section 4(2) notice and for the 14 (fourteen) day notice period

to expire.

15.7.4 If the eviction application is postponed in open court on a day of which

notice in terms of section 4(2) was duly given, and if the postponement is

to a specific date, it will not be necessary to serve another section 4(2)

notice in respect of the latter date.

15.7.5 The local, provincial or national authorities that might be affected by an

eviction order must be clearly identified.

15.8 PROVISIONAL SENTENCE

15.8.1 Proof of presentation of a negotiable instrument is unnecessary unless

presentation is disputed or the court requires proof thereof.

15.8.2 The original liquid document upon which provisional sentence is sought

must be handed to the court when the provisional sentence is sought.

15.9 REHABILITATION

15.9.1 An application for rehabilitation will not be read by the presiding judge if

the master‟s report is not in the court file. The presiding judge will only

accept the master‟s report from the bar in exceptional circumstances

made out in an affidavit.

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15.9.2 If the applicant avers that a contribution paid by a creditor has been

repaid to the creditor, adequate proof thereof must be provided.

15.9.3 The applicant, as is required by section 127 of Act 24 of 1936, must state

what dividend was paid by the creditors. It is not acceptable to attempt

to comply with this requirement by attaching the distribution account

which the presiding judge is expected to analyse and interpret.

15.9.4 As the date of the hearing of an application for rehabilitation has been

advertised, any postponement of the application will be to a specific date.

15.10 REMOVAL OR AMENDMENT OF RESTRICTIONS ON LAND USE

15.10.1 Applications dealt with in this section are based upon the premise that

the consent of the holder of the right that is sought to be cancelled or the

conditions under which it was granted are sought to be amended, does

not object to the application, as is discussed in, inter alia, Ex parte Gold

1956 (2) SA 642 (T) and Ex parte Glenrand (Pty) Ltd 1983 (3) SA 203

(W).

15.10.2 If follows that the court should be convinced that the holder of the right in

question has knowledge of the application. There should accordingly be

service on all interested parties concerned. Service under rule 4(2) of

the Rules of Court is authorised by way of exception to the ordinary

methods of service. Full and cogent reasons should be advanced in

support of a request under the sub-rule.

15.10.3 The fact that it might be difficult or costly to ascertain particulars of the

persons concerned, and to effect service on them, is not the most

important consideration. The nature and extent of the curtailment of the

rights of affected persons and the need to ensure that they are made

aware of the application, is of greater importance. It follows that the

court might distinguish between persons directly or indirectly affected by

such applications, and differentiated service might be authorised.

15.10.4 When the application is presented to court:

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15.10.4.1 It must be proved that the application together with a request

to report was served in good time upon the registrar of

Deeds, any Township Board that might be involved and,

where applicable, a local authority that is able to comment

upon:

15.10.4.1.1 The correctness of the facts relied upon by

the applicant.

15.10.4.1.2 The identity of persons who may have a legal

interest or whose refusal of consent could

constitute adequate reason to refuse the

application.

15.10.4.1.3 The optimal method of notifying interested

parties.

15.10.4.2 A plan or map must be attached as an annexure to the

report (if necessary extending beyond the relevant township

in which the property is situated) that will assist the court to

ascertain which owners or users (of roads or rights) have an

interest sufficiently strong to warrant their being given notice

of the application.

15.10.4.3 If applicable, factors must be recorded that may render

ordinary service on interested parties impractical.

15.10.4.4 As the mere objection by an affected person to the removal

or amendment may put an end to the application, affected

persons must be clearly informed that they may raise their

objections, either by written notice to the registrar or on the

return day, without running the risk of being mulcted in costs.

5.11 SEQUESTRATION AND VOLUNTARY SURRENDER OF ESTATES

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15.11.1 In an application for sequestration, unless leave to proceed by way of

substituted service has been granted, personal service of the application

must be effected on the respondent.

15.11.2 Unless the court directs otherwise in terms of section 11(2) of Act 24 of

1936, the provisional order of sequestration must be served on the

respondent personally.

15.11.3 If an extension of a provisional order of sequestration is sought, the party

seeking such an extension must deliver an affidavit motivating such an

extension.

15.11.4 If the applicant fails to establish that the application is not a so-called

“friendly” sequestration the following will apply:

15.11.4.1 Sufficient proof of the existence of the debt which gives rise

to the application must be provided. The mere say so of the

applicant and the respondent will generally not be regarded

as sufficient.

15.11.4.2 The respondent‟s assets must be valued by a sworn

appraiser on the basis of what the assets will probably

realize on a forced sale. Mere opinions, devoid of reasoning

as to what the assets will probably realize, will not be

regarded as compliance herewith. The valuation must be

made on oath and the appraiser must be qualified as any

other expert witness.

15.11.4.3 Where the applicant seeks to establish advantage to

creditors by relying on the residue between immovable

property valued as aforesaid and the amount outstanding on

a mortgage bond registered over the immovable property,

proof of the amount outstanding on the mortgage bond at

the time of the launching of the application is required,

together with an accurate exposition of the rate of interest

charged by the bondholder at the time of signature of the

notice of motion. Provision must be made for any interest

that will be charged on the balance outstanding of the debt

secured by the bond until the date of hearing, to be added to

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the amount owing to the bondholder when the matter is

heard.

15.11.4.4 Where the applicant seeks to establish advantage to

creditors by relying on a sum of money paid into an

attorney‟s trust account to establish benefit for creditors, an

affidavit by the attorney must be attached to the application

in which he/she confirms that the money has been paid into

his trust account and will be retained there until the

appointment of a trustee. The source of the funds paid into

the attorney‟s trust account must be clearly disclosed under

oath by the person providing the money.

15.11.4.5 In establishing advantage to creditors the following

sequestration and administration costs will be assumed in an

uncomplicated application:

15.11.4.5.1 Cost of application – R6,000.

Cost of application if correspondent utilized –

R8.000 (if the applicant‟s attorney of record

has agreed to limit fees proof thereof must be

provided).

15.11.4.5.2 The aforementioned costs are assumed to

increase by R700 for every postponement of

the application or if the provisional order has

to be furnished to all known creditors, the

aforementioned costs are assumed to

increase by R700.

15.11.4.5.3 The cost of administration, subject to a

minimum of R2,500 are:

1% plus VAT on cash or money in a

financial institution;

3% plus VAT on immovable property and

shares; and

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10% plus VAT on movable property

including book debts.

15.11.4.5.4 Other administration costs include sheriff fees

(Schedule 3 of Act 24 of 1936) and the costs

of security.

15.11.4.5.5 The aforementioned costs do not include the

costs of the realization of the asset. The cost

must be established. Unless evidence to the

contrary is placed before the court, it will be

assumed that the cost of the realization of

immovable property is 6% of the selling price

plus advertising charges.

15.11.4.5.6 Regard being had to the costs set out in

paragraph 15.11.4.5.5, the applicant must in

the application set out a calculation indicating

the probable dividend to concurrent creditors,

which shall not be less than 20с in the Rand,

unless extraordinary circumstances exist.

15.11.4.5.7 If the court hearing an application is doubtful

whether the free residue in an insolvent

estate will be sufficient to render a dividend of

20с in the Rand to concurrent creditors, it

may order any shortfall of such dividend to be

supplemented from the applicant‟s attorney‟s

taxed fees in order to ensure that proven

concurrent creditors receive at least 20% of

their claims. The court may further order the

applicant‟s attorney to inform all concurrent

creditors by registered mail that a dividend of

20% of all proven claims has been

guaranteed by such order.

15.11.5 Where the application is brought as an urgent application with the

purpose of staying a sale in execution, notice of the application must be

given to the judgment creditor. In addition the applicant must set out

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facts to enable the court to determine that the assets which are to be

sold at the sale in execution will realise more, if sold privately.

15.11.6 Notwithstanding paragraph 15.11.3 above, a court will be reluctant to

grant an extension of a return date in a “friendly” sequestration.

15.11.7 Where applicable, the aforegoing also apply to applications for the

voluntary surrender of estates.

15.11.8 Every application for the voluntary surrender of an estate must be

accompanied by a practice note completed by the attorney presenting

the application which is in the form annexed hereto as annexure “A”

15.14.

16 - RESERVED JUDGMENTS

16.1 All enquiries about reserved judgments must be directed to the Judge President or

the most senior judge available in writing who will then enquire from the judge

involved when the judgment will be delivered.

16.2 If the aforementioned letter is not delivered by all the parties to the litigation, proof

that a copy of the letter has been forwarded to the other party or parties, must be

provided.

16.3 Legal representatives must no later than 14 (fourteen) days after the beginning of

a court term, provide a list of reserved judgments in matters handled by him/her to

the Judge President or the most senior judge available.

17 - UNOPPOSED DIVORCE ACTIONS

17.1 Prior to enrolling the matter, the legal representative who enrols the matter must

ensure that the court file contains all the relevant pleadings, notices and returns of

service. The legal representative must further ensure that the court file is properly

paginated, indexed and bound. Documents will only be accepted from the bar in

exceptional circumstances which must be established on affidavit.

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17.2 The pleadings, notices and returns of services referred to in the previous

paragraph must all be originals. If anyone is not an original, an affidavit must be

included in the documents explaining why the original is not in the court file and

proving that the copy is a true copy of the original. Where the summons is not the

original summons, the affidavit must additionally prove that the original summons

was properly signed and stamped when issued. In such a case the presiding

judge will determine if the matter can proceed in the absence of the original

pleadings, notices and returns of service.

17.3 If a copy of a marriage certificate is used to prove the marriage, the copy must

have been certified as a true copy of the original.

17.4 Where the party proving the marriage requires return of the original or certified

marriage certificate, a copy thereof must be available to be placed in the court file

at the hearing.

17.5 In the event that the parties have concluded an agreement of settlement, the

original agreement of settlement must not be placed in the court file. The original

agreement must be handed up through the witness proving its conclusion.

17.6 If a matter is not on the printed roll it will not be enrolled save in exceptional

circumstances which must be made out on affidavit.

17.7 A matter may not be enrolled prior to the expiry of the dies induciae even if the

dies induciae will have expired by the time the matter is heard.

17.8 Any amendment to the pleadings must be sought in writing. If the amendment is

granted the judge‟s clerk must note the order on the court file. The notation of the

order will, in so far as the amendment may relate to the parties‟ names and the

spelling thereof, draw the attention of the registrar‟s office thereto and ensure that

any court order will correctly reflect the parties‟ names.

17.9 Subject to the discretion of the presiding judge the evidence necessary for the

grant of a decree of divorce may be presented on affidavit provided that:

17.9.1 The affidavit proves that no child was born to or adopted by the parties to

the marriage, or, if there was, that such child is over the age of 18 years.

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17.9.2 All financial matters between the spouses have been settled in a signed

written agreement which is identified in and attached to the affidavit, or if

the only order to be sought in regard to financial matters is division of the

joint estate or forfeiture of the benefits of the marriage in community of

property.

17.9.3 All necessary evidence is set out in the affidavit. (In this regard it is

emphasised that primary facts and not conclusions of fact are required).

17.9.4 The affidavit is attached to the notice of enrolment.

17.10. If the interests of minor children are involved in any divorce, any settlement

agreement entered into by the parties in which the interests of such minors are

addressed, or, in the absence of an agreement, any prayers dealing with the

interest of minor children must be referred to the Family Advocate prior to the

hearing of the matter. Any comment, concern or recommendation expressed by

the Family Advocate must be brought to the court‟s attention together with a

comprehensive exposition of the manner in which the parties intend to address

such comment, concern or recommendation.

18 - STANDARD ORDERS

18.1 To facilitate the printing of court orders certain standard orders have been devised.

Where practical, practitioners should seek relief in terms of the standard orders.

18.2 Any deviation from the standard order must be motivated either in the court papers

or by counsel at the hearing of the matter.

18.3 The standard orders that are annexed hereto are:

18.3.1 Absolution from the instance

18.3.2 Admission of Translator

18.3.3 Agreement of Settlement

18.3.4 Default Judgment by Court

18.3.5 Default judgment by registrar

18.3.6 Discharge of Provisional Sequestration

18.3.7 Divorce with Settlement Agreement

18.3.8 Divorce without Settlement Agreement

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18.3.9 Edictal Citation

18.3.10 Final Sequestration

18.3.11 General order for Discovery

18.3.12 Leave to Appeal

18.3.13 Order in terms of rule 39(22)

18.3.14 Order on Appeal

18.3.15 Post Nuptial Registration of a contract

18.3.16 Provisional Sentence 1

18.3.17 Provisional Sequestration

18.3.18 Rehabilitation

18.3.19 Restrictive Conditions on Land

18.3.20 Rule 43

18.3.21 Rule Nisi

18.3.22 Substituted Service

18.3.23 Summary Judgment granted

18.3.24 Summary Judgment refused

18.3.25 Surrender

18.3.26 Unallocated Order

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18.3.1 ABSOLUTION FROM THE INSTANCE

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION

OR

LIMPOPO LOCAL DIVISION

CASE NO:

BEFORE THE HONOURABLE JUDGE

In the matter between:-

PLAINTIFF

and

DEFENDANT

HAVING read the documents filed of record, having heard counsel and having considered the matter:-

THE COURT ORDERS THAT: 1. Absolution form the instance be granted to the defendant.

2. The plaintiff is ordered to pay the costs of the action.

BY THE COURT

____________ REGISTRAR

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18.3.2 ADMISSION OF TRANSLATOR


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

HAVING read the documents filed of record, heard counsel and having considered the matter:-

IT IS ORDERED THAT:

The proper officer places the name of the applicant on the roll of translators for

translations from ………………………..to ………………………. and from

……………………. to ……………………….

BY THE COURT


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18.3.3 AGREEMENT OF SETTLEMENT


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT

HAVING read the documents filed of record, heard counsel and having considered the matter:

IT IS ORDERED THAT:

The agreement of settlement marked “….” is made an order of court.

BY THE COURT


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18.3.4 DEFAULT JUDGMENT BY COURT


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


DEFAULT JUDGEMENT is granted against the for:

1. Payment of the sum of ………………

2. Interest on the sum of ………………at the rate of ….... per annum from

…………….to date of payment.

3. The following property is declared especially executable ………………………….

.

4. Costs of suit.

BY THE COURT


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18.3.5 DEFAULT JUDGMENT BY THE REGISTRAR


LIMPOPO DIVISION

OR


CASE NO:


PLAINTIFF

and

DEFENDANT

HAVING read the documents filed of record and having considered the matter:-

DEFAULT JUDGEMENT is granted against the for:

1. Payment of the sum of …………………………… .

2. Interest on the sum of……at the rate of…..per annum from ……..to date of

payment.

3. ………………… .

BY THE COURT


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18.3.6 DISCHARGE OF PROVISIONAL SEQUESTRATION


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

1. The order of provisional sequestration is set aside. 2. The rule nisi is discharged.

BY THE COURT


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18.3.7 DIVORCE WITH SETTLEMENT AGREEMENT


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


THE COURT ORDERS THAT: 1. The marriage between the plaintiff and defendant is dissolved.

2. The deed of settlement (marked “ “) is hereby made an order of court.

BY THE COURT


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18.3.8 DIVORCE WITHOUT SETTLEMENT AGREEMENT


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


THE COURT ORDERS THAT: 1. The marriage between the plaintiff and defendant is dissolved. 2. ……………….. is awarded care and primary residence of the minor children

……………….. 3. The other parent shall be entitled to reasonable contact to the said children which

contact shall include: 4. …………….. is ordered to pay maintenance to ………………. in the amount of

……………..per month per child . 5. …………….. is ordered to pay maintenance in respect of the minor children at the

rate of…………………. 6. The defendant is ordered to pay the costs BY THE COURT

____________

REGISTRAR

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18.3.9 EDICTAL CITATION


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


THE COURT ORDERS THAT: 1. Leave is granted to the applicant to sue the abovementioned respondent by way of

edictal citation for the following relief:

2. The citation must be served on the respondent ……………………

3. The respondent is afforded …………………. (days) within which to enter

appearance to defend.

4. The costs of this application are costs in the cause.

BY THE COURT


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18.3.10 FINAL SEQUESTRATION


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

The estate of the respondent is placed under final sequestration

BY THE COURT


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18.3.11 GENERAL ORDER FOR DISCOVERY


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

1. …………………………..shall make discovery on affidavit within

……………………………………..days from the date of service of this order.

2. The costs of this application are to be paid by

……………………………………………………………...

BY THE COURT


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18.3.12 LEAVE TO APPEAL


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

1. Leave to appeal is granted.

2. Leave is granted to appeal to the Supreme Court of Appeal / the Full Court of this

division.

3. The costs of this application are costs in the appeal.

BY THE COURT


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18.3.13 ORDER IN TERMS OF RULE 39(22)


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


IT IS ORDERED THAT:-

1. The matter is transferred to the magistrate`s court for the area - in terms of rule

39(22).

2. The costs incurred to date are costs in the cause.

BY THE COURT


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18.3.14 ORDER ON APPEAL


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

1. The appeal is upheld / dismissed.

2. The order of the court a quo is set aside and substituted with the following order:

(Set out order if the appeal is upheld)

3. The respondent / appellant is ordered to pay the costs of the appeal.

BY THE COURT


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18.3.15 POST NUPTIAL REGISTRATION OF A CONTRACT


LIMPOPO DIVISION

OR


CASE NO:



FIRST APPLICANT

and

SECOND APPLICANT


THE COURT ORDERS THAT: 1. The applicants are given leave to effect the execution and registration of a notarial

contract, a draft whereof is annexed as annexure “ “ to the application, which contract will after registration thereof regulate their matrimonial property system:-

2. The registrar of Deeds is authorised to register the said notarial contract: 3. This order: 3.1 will lapse if the notarial contract is not registered by the registrar of Deeds within two

months of the date of the granting of this order; 3.2 will not prejudice the rights of any creditor of the applicant as at date of registration

of the contract. BY THE COURT


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18.3.16 PROVISIONAL SENTENCE


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


PROVISIONAL SENTENCE is granted against the defendant for:




3. Costs of suit

4. The following property is declared especially executable:

BY THE COURT


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18.3.17 PROVISIONAL SEQUESTRATION


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

1. The estate of the respondent is placed under provisional sequestration.

2. The respondent and any other party who wishes to avoid such an order being

made final, are called upon to advance the reasons, if any, why the court should

not grant a final order of sequestration of the said estate on the …….day of

…………..………..at 10:00 or as soon thereafter as the matter may be heard.

BY THE COURT


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18.3.18 REHABILITATION


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT


IT IS ORDERED THAT:

1. The abovementioned applicant be and is hereby rehabilitated.

BY THE COURT


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18.3.19 RESTRICTIVE CONDITIONS ON LAND


LIMPOPO DIVISION

OR


CASE NO: BEFORE THE HONOURABLE JUDGE In the matter between:-

APPLICANT

and

RESPONDENT

HAVING read the documents filed of record, heard counsel and having considered the matter:- IT IS ORDERED THAT:

1. A rule nisi is issued calling on any interested persons who may choose to do so, to

object either by letter received by the registrar before …….., or by personally or

through counsel appearing in court on ……………..at 10:00 against the granting of

the following order:-

1.1 1.2 1.3 2. Any person who has a right which may be affected is entitled to object to the

granting of such an order, and may do so without incurring liability for costs. If he opposes by writing a letter to the registrar, the objector must state the objector‟s full names, identity number and address and describe the property or right which will be affected by the grant of the order.

3. The order sought will have the following effect:

……………………………………………………………….. 4. The papers in the matter are open for inspection without charge at the office of the

Registrar, High Court, cnr Paul Kruger and Vermeulen Street, Pretoria, and at the offices of the applicant‟s attorney:-

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Messrs. of 5. Service is to be effected:- 5.1 by the dispatch of a copy of the order by prepaid post before …………..to the

following persons at the addresses set out alongside their names……….

6. A copy of the order, in two official languages, is to be exhibited on a prominent part of the public notice board at the office of the …………………..for a period of four weeks from ……………

7. Copies of the order in two official languages are to be exhibited at conspicuous

places at ………. BY THE COURT ___________ REGISTRAR

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18.3.20 RULE 43


LIMPOPO DIVISION

OR


CASE NO:

BEFORE THE HONOURABLE JUDGE In the matter between:-

PLAINTIFF and

DEFENDANT HAVING read the documents filed of record, heard counsel and having considered the matter:- THE COURT ORDERS THAT: 1. Pendente lite the………………………. is ordered to pay maintenance to

……………in the amount of R ………per month. 2. Pendente lite the …………………. is awarded care and primary residence of the

minor children born out of the marriage. 3. Pendente lite the ………………… shall be entitled to reasonable contact to the said

minor children, which access shall include:- (i) ……………………. (ii) ……………………. 4. Pendente lite the ………………….. is ordered to pay maintenance to ………………

in respect of the aforesaid minor children in the amount of R …………. per month per child.

3. The……………………….. is ordered to make a provisional contribution to

…………….. legal costs pendente lite in monthly instalments in the amount of R …………

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4. The payments referred to above will commence on or before the ……. day of …….. 20…. And shall thereafter be made on or before the …….. day of each succeeding month.

5. The costs of this application are to be costs in the cause. BY THE COURT ____________ REGISTRAR

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18.3.21 RULE NISI


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT: 1. A rule nisi is issued calling upon the respondent to show cause on

…………………….. day of (month and year) at 10:00 or so soon thereafter as the matter may be heard why an order should not be made in the following terms:-

1.1

1.2

1.3

2. Pending the return day the respondent is interdicted from:

2.1

2.2

BY THE COURT ___________ REGISTRAR

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18.3.22 SUBSTITUTED SERVICE


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT

HAVING read the documents filed of record, heard counsel and having considered the matter:- THE COURT ORDERS THAT: 1. Leave is granted to the application to serve the summons in which the applicant

claims: 1.1 1.2 by way of substituted service. 2. Service of the summons must be effected by ………………………… . 3. The respondent is to be afforded ……………………. (days) after service of the

summons within which to enter appearance to defend. 4 The costs of this application are to be costs in the cause. BY THE COURT ____________ REGISTRAR

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18.3.23 SUMMARY JUDGMENT GRANTED


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


SUMMARY JUDGEMENT is granted against the for:




3. Costs of suit

BY THE COURT


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18.3.24 SUMMARY JUDGMENT REFUSED


LIMPOPO DIVISION

OR


CASE NO:



PLAINTIFF

and

DEFENDANT


SUMMARY JUDGEMENT is:

1. Refused

2. Leave is granted to the defendant to defend the action.

3. Costs will be costs in the cause.

BY THE COURT


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18.3.25 SURRENDER


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT


IT IS ORDERED THAT:

The surrender of the estate of the applicant is accepted as insolvent and the estate

is placed under sequestration in the hands of the Master of the High Court.

BY THE COURT


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18.3.26 UNALLOCATED ORDER


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

BY THE COURT


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19 - USHERS

19.1 The standards that are expected of ushers in the performance of their court duties

as described in their job description are set out hereunder.

19.2 While in attendance in court, ushers should be neatly and appropriately dressed.

The appropriate dress code is the following:

19.2.1 Male ushers should be dressed in shoes, socks, dark long trousers,

white shirt with buttoned collar, and a sober tie.

19.2.2 Female ushers should be dressed in shoes, dark skirt or long trousers,

and a white, collared blouse.

19.2.3 All ushers are required to wear a black gown which must be in a proper

state of repair. Gowns are issued by the registrar, and each usher is

responsible to ensure that the gown remains in his possession, and is

properly cared for. If a gown is lost, the usher concerned will be

responsible for the cost of replacement. If a gown becomes unduly

worn, it must be returned to the registrar, and will be replaced.

19.3 Ushers must adhere to the duty roster issued by the registrar unless a departure

from the roster has been arranged with the chief registrar. A copy of the roster for

the week will be circulated to all judges at the commencement of the working

week.

19.4 The working hours of ushers are from 08:00 am to 16:15, and they should make

their transport arrangements accordingly. Working hours may not be altered

without prior arrangement with the chief usher and the judge concerned.

19.5 An usher will present himself or herself at the chambers of the judge to whom he

or she has been allocated at 09:30 am each day in order to determine what may

be required of him or her in order to ensure that the court commences at 10:00 am.

The usher will thereafter attend the court concerned. Once the court is ready to

convene he or she will report at the chambers of the judge concerned in sufficient

time to enable the court to convene at 10:00 am. If a court is not ready to convene

by 10:00 the usher will immediately report the fact to the judge concerned.

19.6 Ushers will remain in court, and will remain alert, throughout the court session.

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19.7 An usher who has been allocated to perform duties in two courts must inform the

clerk of both judges accordingly. If the usher is performing duties in a trial court

and in an appeal court, the usher is required to remain in attendance at the trial

court, unless specific arrangements to the contrary have been made by the judges

concerned, and conveyed to the usher.

19.8 If the court session has not been completed by 15:55 pm, the usher may leave the

court at that time in order to complete his or her other duties before the end of the

working day.

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ANNEXURE “A” 6.15

ANNEXURE TO NOTICE OF SET DOWN FOR TRIALS This document must be

completed in triplicate ________________________________________________________________

TELEFAX CONFIRMATION IN TERMS OF TRANSVAAL RULE 7(3) FOR TRIAL DATES ALLOCATED

________________________________________________________________

DATE OF APPLICATION FOR TRIAL DATE: _________ CASE NO: ____________

PLAINTIFF _____________________________________________________________ DEFENDANT _____________________________________________________________ PARTY APPLYING FOR A TRIAL DATE . ATTORNEY _____________________________________________________________ ADDRESS _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ REF NO: _____________________________________________________________ LANDLINE NO: _________ FAX number: _____________COMPULSORY PARTY/PARTIES TO WHOM NOTICE IS TO BE GIVEN. ATTORNEY _____________________________________________________________ ADDRESS _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ REF NO: _____________________________________________________________ LANDLINE NO: ___________ FAX number: ___________COMPULSORY

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TRIAL DATE ALLOCATED BY REGISTRAR‟S OFFICE__________________________

This fax transmission serves as notification in terms of Transvaal Rule 7(3) to ALL parties of the trial date allocated, no further registered post notification will be sent. Parties must further satisfy the obligations imposed upon them by Transvaal Rule 7(5) within 7 days of receipt of this fax transmission.

REGISTRAR

Official

Date Stamp

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ANNEXURE “A” 12

1. The court grants the necessary leave in general terms subject to the provisions set

out below.

2. Any party who wishes to film or record proceedings must notify the registrar of its

intention at least 24 (twenty four) hours beforehand. The registrar will then

establish from the presiding judge whether there is any particular objection to the

request.

3. Any party who wishes to object to any filming or recording must raise its objections

in writing.

4. The court may on good cause in any particular case withdraw the leave or change

the conditions.

5. Equipment limitations:

15.1 Video: one camera only may be used at a time and the location of the

camera is not to change while the court is in session.

15.2 Audio: the media may install their own audio-recording system provided

this is unobtrusive and does not interfere with the proceedings.

Individual journalists may bring tape recorders into the courtroom for the

purposes of recording the proceedings but changing of cassettes is not

permitted while the court is in session.

15.3 Still cameras: only one photographer allowed and the location of the

camera is not to change and no changing of lenses or film is permitted

while the court is in session.

15.4 All camera, video and audio equipment must be in position at least 15

minutes before the start of proceedings and may be moved or removed

only when the court is not in session. Cameras, cables and the like are

not to interfere with the free movement within the court.

15.5 Lighting: no movie lights, flash attachments or artificial lighting devises

are permitted during court proceedings.

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15.6 Operating signals: no visible or audible light or signal may be used on

any equipment.

6. Pooling arrangements:

16.1 Only one media representative may conduct each of the audio-, video

and still-photography activities.

16.2 This media representative is to be determined by the media themselves

and is to operate an open and impartial distribution scheme, in terms of

which the footage, sound or photographs would have to be distributed in

a „clean” form, that is, with no visible logos, etc, to any other media

organization requesting same and would also be archived in such a

manner that it remains freely available to other media.

16.3 If no agreement can be reached on these arrangements, no expanded

media coverage may take place.

7. Rules regarding behaviour of media representatives:

7.1 Conduct must be consistent with the decorum and dignity of the court.

7.2 No identifying names, marks, logos or symbols should be used on any

equipment or clothing worn by media representatives.

7.3 All representatives (including camera crew) must be appropriately

dressed.

7.4 Equipment must be positioned and operated to minimize any distraction

while the court is in session.

7.5 Equipment must not be placed in or removed from the court room.

7.6 No film, video tape, cassette tape or lens may be changed.

8. There is an absolute bar on:

8.1 Audio recordings or close-up photography of bench discussions.

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8.2 Audio recordings or close-up photography of communication between

legal representatives or between clients and their legal representative.

8.3 Close-up photographs or filming of judges, lawyers or parties in court.

8.4 Recordings (whether video or audio) being used for commercial or

political advertising purposes thereafter.

8.5 Use of sound bytes without the prior consent of the presiding judge.

(This does not apply to extracts from judgments or orders.)

9. Failure to comply with these instructions may lead to contempt of court

proceedings.

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ANNEXURE “A” 13

MEMORANDUM TO PRACTITIONERS

[1] Urgent applications must be brought in accordance with rule 6 and the guidelines set out in cases such as Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A-G, Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) and Sikwe v SA Mutual Fire & General Insurance 1977 (3) SA 438 (W) at 440G-441A. The majority of practitioners launch urgent applications without taking account of the rules or the guidelines. Apparently many practitioners feel entitled to select any day of the week and any time of the day (or night) to demand a hearing. The result is that procedures are followed which do not accord remotely with „the good order which is necessary for the dignified functioning of the Court‟ – Luna Meubel Vervaardigers at 136G-H.

[2] The purpose of this memorandum is to inform practitioners how rule 6(12) must be applied and the manner in which the urgent court will be managed to ensure that there is an orderly and dignified adjudication of applications in that court. This means ensuring that the papers are filed timeously and ready for adjudication. In general this means that they must be complete when filed by 12:00 on the Thursday ready for roll call at 10:00 the following Tuesday.

[3] The attention of practitioners is drawn to the following:

(1) Urgent applications must as far as practicable be in terms of the rules: i e the deviation from the rules must be commensurate with the urgency of the case;

(2) Urgency mainly involves the abridgment of times prescribed by the rules and secondarily the departure from established filing and sitting times;

(3) In Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A-G the court considered the effect of rule 6(12) (what follows is a translation) –

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„It is of importance to state what the effect of this rule is. In the case of an urgent application an applicant is permitted to act by way of notice of motion without taking into account the rules which are usually applicable. The applicant is, in a certain sense, taking into account the circumstances of the case permitted to make his own rules but “as far as practicable” in accordance with the existing rules. Rule 6(12) therefore makes provision for a process subject to rules different from the usual and when an applicant appears before a judge in such a procedural manner he must ask the judge to disregard the rules applicable to ordinary adjudication. He is not obliged to go to the judge first to ask permission to act by means of extraordinary adjudication because rule 6(12) expressly provides that the judge may deal with such a matter when and where he deems fit. If an applicant acts in terms of this rule and informs the respondent that he regards the application as urgent it follows, in my view, that the respondent is obliged, in the sense that he runs the risk of an order against him by default, and entitled to provisionally accept the rules which the applicant has adopted. When the matter comes before the judge he can object, but in the meantime, he dares not disregard the rules which the applicant has made for himself. Even if the rules of court with regard to ordinary adjudication are deemed to determine that an action is instituted when the notice of motion is handed to the registrar in the case of an urgent application the applicant in the absence of the registrar may launch the matter directly to the judge and the judge can disregard the rules of ordinary adjudication in this connection. Rule 6(12)(a) provides that in the case of urgent applications a judge can disregard the “forms and service” prescribed by the rules. Delivery of a notice of motion to the registrar is no “service” but because in the case of an opposed motion the applicable form 2(a) in the first Schedule requires express notice to the registrar and respondent a judge in an urgent case when the registrar is not available can disregard the requirement that form 2(a) be directed to the registrar.‟

(4) Judges sit in the urgent motion court on a weekly basis and matters should be set down bearing that in mind. Whether unopposed or opposed the papers must be filed (bound, indexed and paginated) by 12:00 the previous Thursday, unless the matter is so urgent that relief must be granted sooner. In Luna Meubel Vervaardigers at 137A-E the ascending order of urgency is set out:

(1) The question is whether there must be a departure at all from the times prescribed in rule 6(5)(b). Usually this involves a departure

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from the time of 7 (now 10) days which must elapse from the date of service of the papers until the stated day for hearing. Once that is so, this requirement may be ignored and the application may be set down for hearing on the first available motion day but regard must still be had to the necessity of filing papers with the registrar by the preceding Thursday so that it can come onto the following week‟s motion roll which will be prepared by the Motion Court Judge on duty for that week.

(2) Only if the matter is so urgent that the applicant cannot wait for the next motion day, from the point of view of the obligation to file the papers by the preceding Thursday, can he consider placing it on the roll for the next Tuesday, without having filed papers by the previous Thursday.

(3) Only if the urgency be such that the applicant dare not wait even for the next Tuesday, may he set the matter down for hearing on the next court day at the normal time of 10:00 am or for the same day if the court has not yet adjourned.

(4) Once the court has dealt with the causes for that day and has adjourned, only if the applicant cannot possibly wait for the hearing until the next court day at the normal time that the court sits, may he set the matter down forthwith for hearing at any reasonably convenient time, in consultation with the registrar, even that be at night, or during the weekend.

Practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules under the ordinary practice of the court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip service to the requirements of rule 6(12)(b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter is set down.‟

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(5) Normally a respondent has not less than five days after service to give notice of his/her intention to oppose the application (rule 6(5)(b)) and if no notice of intention to oppose is given, a period of not less than ten days must elapse between the date of service and the date of the hearing stipulated in the notice of motion (rule 6(5)(b)). If the respondent gives notice of intention to oppose the respondent has 15 days from the date of service of the notice within which to file the answering affidavit or a notice of his/her intention to raise a question of law (rule 6(5)(d)). Thereafter the applicant has 10 days from the date of service of the answering affidavit to file a replying affidavit (rule 6(5)(e)). After that the applicant may within five days apply for the allocation of a date for the hearing, failing which the respondent may do so (rule 6(5)(f)). It is clear from these times that the respondent is normally given ample time to consider whether to oppose (5 days); to file an answering affidavit (15 days); and to consider the replying affidavit before the matter is enrolled (5 days);

(6) The rule ensures an orderly flow of applications through the court and their expeditious adjudication. Rule 6(12) allows an applicant who requires relief urgently to have his case decided without the delays necessitated by the ordinary procedure. However the normal times will be abridged and the deviation from rule 6 will be permitted only when the matter is urgent. The degree of abridgement and deviation must be commensurate with the case and must be justified in the founding affidavit. It is also required that the applicant satisfy the court that the circumstances of the case are such that the

applicant will not be afforded substantial redress at a hearing in due course. Rule 6(12)(b) provides that –

„In every affidavit or petition filed in support of any application under sub-paragraph (a) of this sub-rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.‟

(7) Too many practitioners are over-optimistic or reckless in their assessment of the requirements set out in rule 6(12)(b) and attempt to use rule 6(12) to jump

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the queue to their client‟s advantage. Many applications are struck off the roll because the court has found them not to be urgent. It is clear that the rule continues to be the most abused rule in the Division;

(8) In accordance with the Republikeinse Publikasies judgment an applicant may choose to set the matter down on any Tuesday (or other day, in accordance with the degrees of urgency referred to in Luna Meubel Vervaardigers) but if the applicant does not wish to have the matter heard on that day at the time indicated it is wrongly enrolled and the procedure abused. If an applicant anticipates that the application will be opposed it is essential that the respondent and the applicant be allowed reasonable times for the filing of answering and replying affidavits before the roll closes at 12:00 on Thursday. If these affidavits are not able to be filed in time and the matter cannot be heard at the time indicated in the notice of motion the procedure is abused. In every case the court will decide whether reasonable time has been allowed in the light of the circumstances revealed in the affidavits. If reasonable times have been allowed the respondent will not be allowed to delay the process;

(9) Where the urgent motion court judge has found that the application is not urgent and strikes it off the roll the applicant is not prevented from re-enrolling the application duly amplified in a later week.

[4] In the light of the aforegoing practitioners can expect the following approach in the urgent motion court –

(1) Strict application of the Republikeinse Publikasies and Luna Meubel Vervaardigers judgments: all urgent applications must be enrolled by 12:00 on the previous Thursday for hearing at 10:00 on Tuesday unless they are covered by the other three degrees of ascending urgency referred to in Luna Meubel Vervaardigers;

(2) Insistence by the urgent court judge that the judge be satisfied that –

(i) the abridgement of times and the deviation from the rule is justified by the circumstances of the case; and

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(ii) if the matter is not heard immediately the applicant will not be afforded substantial redress at a hearing in due course;

These matters must be pertinently dealt with in the affidavits filed in support of the application;

(3) If an application is not filed (bound, indexed and paginated) by 12:00 on the previous Thursday (subject to the remaining degrees of ascending urgency in Luna Meubel Vervaardigers) the application will not be heard and will be struck off the roll. The object of timeous filing of the papers is to enable the court to prepare and adjudicate upon the matter expeditiously;

(4) If the judge is not satisfied that the application must be heard in the week in which it is enrolled for hearing it will be struck from the roll;

(5) If the application is enrolled for hearing outside normal court hours (i e 10:00 – 16:00) without satisfactory explanation, it will be struck from the roll;

(6) If an application, whether unopposed or opposed, is not ready to be adjudicated upon at the time indicated in the notice of motion it will be struck off the roll. If this occurs in an opposed application because the affidavits have not been filed timeously before 12:00 the previous Thursday (subject to the application falling under the remaining three degrees of ascending urgency referred to in Luna Meubel Vervaardigers) this will mean that the applicant has not complied with the Republikeinse Publikasies guidelines. The judge in the urgent motion court will not permit the application to stand down so that further affidavits can be filed;

(7) If a matter is not ready for hearing in the week in which it is enrolled for hearing, for whatever reason, in the absence of exceptional circumstances, which must appear from an affidavit, it will not be postponed to a later week. It will be struck off the roll;

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(8) If the circumstances of a case are exceptional and the judge postpones the matter to a later week the judge will order –

(i) that the remaining affidavits be filed (bound, indexed and paginated) by specific times;

(ii) that the papers be taken immediately to the judge who will sit in the later court;

(iii) that the applicant immediately deliver to the judge who will sit in the later week a letter summarising the issues in the matter and the nature of the urgency.

(9) The return day of a rule nisi will be heard in the ordinary motion court unless the rule nisi expressly orders that the return day be heard in the urgent motion court. If parties agree that interim relief be granted and the respondent contends that the final adjudication of the matter is urgent, this must be dealt with in an affidavit so that the judge in the urgent motion court can make the appropriate order;

(10) No matter involving more than 500 pages will be considered by the judge in the urgent court (subject to the remaining three degrees of ascending urgency) unless the papers are delivered to the judge who will hear the matter at least 48 hours before the time of the hearing in the notice of motion;

(11) Any semi-urgent application which involves bulky affidavits in excess of 500 pages and/or argument in excess of three hours will be referred to the Deputy Judge President to allocate a date and judge for the hearing. Where practitioners anticipate that a dispute is of such importance that it must be resolved urgently by the court, for whatever reason, they should approach the Deputy Judge President to allocate a date for the hearing and determine dates for the filing of affidavits and heads of argument and the indexing and pagination of the affidavits.

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1. The order being served on you requires you to allow the persons named therein to

enter the premises described in this order and to search for, examine and remove

or copy the articles specified in this order. You are also required to point out and

hand over any such item to the sheriff. Particulars are stated in the order.

2. … .

2.1 When this notice is handed to you, you are entitled, if you are an

employee of the respondent or in charge of the premises, to contact the

respondent or a more senior officer of the respondent. You are entitled

to the attendance and advice of such senior person, the respondent or

an attorney, provided such person arrives without delay and not later

than an hour after the handing over of this notice.

2.2 Until the attorney, the respondent or such other officer arrives or until the

time has passed for him or her to arrive, you need not comply with any

part of this order, except that you must allow the applicant‟s attorney, the

sheriff and the other persons named in the order to enter the premises

and to take such steps as, in the opinion of that attorney, are reasonably

necessary to prevent prejudice to the further execution of the order.

3. You are further entitled to have the sheriff and the applicant‟s attorney explains to

you what this notice and the court order mean.

4. You may be punished for contempt of court if you, inter alia:

4.1 Obstruct the sheriff unlawfully in the execution of this order.

4.2 Wilfully disobey this order.

4.3 Remove or intentionally cause harm to any item about to be attached or

removed in terms of this order, until the attachment is set aside by the

court or is lifted on instruction from the applicant.

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ANNEXURE “B” 15.1

Having heard counsel for the applicant and having read the papers filed of record, and on

the basis that the applicant undertakes to this court that:

1. This order will not be executed outside the hours between 08:00 and 18:00 on a

weekday;

2. Applicant will prevent the disclosure of any information gained during the execution

of this order to any party except in the course of obtaining legal advice or pursuing

litigation against the respondent;

3. Applicant will compensate the respondent for any damages caused to the

respondent by anyone exceeding the terms of this order;

4. Applicant will compensate the respondent for any damage caused to the

respondent by reason of the execution of this order should this order subsequently

be set aside.

IT IS ORDERED:

1. That the respondent and any other adult person in charge of the premises of the

respondent at Lover‟s Lane, Pretoria, grant the sheriff of the above honourable

court, applicant‟s manager ( “Mr ABC”), attorney DEF (“applicant‟s attorneys”) and a

computer operator nominated by applicant access to the said premises for the

purpose of :

1.1 Searching the premises for the purpose of enabling any of those persons

to identify and point out to the sheriff originals or copies of, or extracts

from applicant‟s recipes and formulae for the manufacture of GHtoys.

1.2 Examining any item for the purpose of identifying it and deciding whether

it is of the nature mentioned in the preceding subparagraph.

1.3 Searching the premises for the purposes of finding any computer disc

containing any of the items referred to above.

2. That the respondent forthwith discloses passwords and procedures required for

effective access to the computer for the purpose of searching on the computer and

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making a disc copy, or, if that is not possible, a print out of computer documents

containing information of the nature which would be expected in a document

mentioned in paragraph 1.1 above.

3. … .

3.1 That the respondent permits the sheriff to attach and to remove any

document pointed out by a person mentioned in paragraph 1 as being a

document covered by paragraph 1.

3.2 That, subject to paragraph 5.3.2 hereof, the sheriff is authorized to attach

any document which is pointed out by any of the aforesaid persons and

is directed to remove any attached document in respect of which the

applicant or the applicant‟s attorney does not give a different instruction.

The sheriff is directed to keep each removed item in his custody until the

applicant authorizes its release to the respondent or this court directs

otherwise.

4. That until completion of the search authorized in the preceding paragraphs the

respondent may not access any computer or any area where documents of the

class mentioned in paragraph 1.1 may be present except with the leave of the

applicant‟s attorney or to make telephone calls or send an electronic message to

obtain the attendance and advice mentioned in the notice which is handed over

immediately prior to execution of this order.

5. The sheriff is directed, before this order and this application is served or executed,

to:

5.1 Hand to the respondent or the other person found in charge of the said

premises a copy of a notice which accords with annexure” A” 15.1 of the

practice directive.

5.2 To explain paragraphs 2, 3 and 4 thereof.

5.3 To inform those persons of the following:

5.3.1 That any interested party may apply to this court on not less

than 24 (twenty four) hours‟ notice to the office of the

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applicant‟s attorney for a variation or setting aside of this

order, the court‟s practices and rules applying unless the

court directs otherwise.

5.3.2 That the respondent is entitled to make a copy of any

document which the sheriff intends to remove unless the

sheriff declares that the time involved makes the procedure

impractical and the sheriff either does not remove the

relevant item or removes it in a container sealed by him and

which the sheriff may not open except to give effect to this

order or to any further direction from the court.

5.3.3 That the respondent or his representative is entitled to

inspect items in the sheriff‟s possession for the purpose of

satisfying themselves that the inventory is correct.

6. The sheriff is ordered to immediately make a detailed inventory of all items

attached and to provide the registrar of this court, the applicant‟s attorney, and the

respondent with a clear copy thereof.

7. That unless a different direction is obtained from the court, applicant and

applicant‟s attorney will, two days after this order is executed, become entitled to

inspect any of the removed items in order to assess whether it provides evidence

relevant to the present application or to the further legal proceedings envisaged in

the application.

8. That the sheriff is ordered to inform the respondent that the execution of this order

does not dispose of all the relief sought by the applicant and to simultaneously

serve the notice of motion and explain the nature and exigency thereof.

9. The costs of this application are reserved for determination in the further

proceedings foreshadowed in this application save that:

9.1 If the applicant does not institute those legal proceedings within 3 (three)

weeks of the date of this order, either party may, on not less than 96

hours‟ notice to the other, apply to this honourable court for an order:

9.1.1 Determining liability for those costs and determining what

must be done about removed items and any copies thereof.

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9.1.2 Any other party effected by the grant or execution of this

order may on no less than 96 hours‟ notice apply to this

honourable court for an order determining liability for the

costs of such party and determining what must be done

about any item removed from any such party or any copy

thereof.

Note: In some situations the following may also be appropriate.

10. The respondent and any other adult person in charge of the premises at which this

order is executed are further directed to disclose to the sheriff of the above

honourable court the whereabouts of any document or item falling within the

categories of documents and items referred to in 1.1 above, whether at the

premises at which this order is executed or elsewhere to the extent that the

whereabouts are known to such person(s).

11. In the event that any document or item is disclosed to be at premises other than

the premises mentioned in paragraph 1 of this order, the applicant may approach

this court ex parte for leave to permit execution of this order at such other

premises.

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Take notice that on the _________ day of ___________ 20 _____ at 10:00 or so soon

thereafter as the matter may be heard, the abovementioned applicants will apply to the

Limpopo North Local Division, Thohoyandou (High Court Buildings, Mphephu Drive,

Thohoyandou) for and order in the following terms:

1. The applicants are given leave to change the matrimonial property system which

applies to their marriage, by the execution and registration of a notarial contract, a

draft whereof is attached to the first applicant‟s supporting affidavit and is marked

“….” and which contract, after registration thereof, will regulate their property

system;

2. The registrar of Deeds is authorised to register the notarial contract:

3. This order:

3.1 will lapse if the notarial contract is not registered by the registrar of

Deeds within two months of the date of the granting of this order; and

3.2 will not prejudice the rights of any creditor of the applicants as at date of

registration of the contract.

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Applicant/s…………………………………….…………… Case No: ……

Practice Note

(1) Applicant‟s address …………………………………….………………..

(2) Date advertised for application ………………………………………....

(3) S 4(1): Publication of notice of surrender

Date of publication …………….………………………………………

Government Gazette p …………….……………………………

Newspaper p .……………….………………………..

(4) S 4 (2): Notice to creditors

Date of delivery/posting p …………………………………………

Affidavit to prove delivery/posting p…………………………………

Physical proof delivery/posting p .…….…………………………

(5) S 4 (3): Statement of affairs p .……………………………….

Date of lodging p ……….……………………….

Master‟s certificate p ..………………………………

Magistrate‟s certificate p .…………………………….…

(6) S 6 (1): Proof of insolvency p …………………………….….

Movable property – description

and value p .………………………………..

Proof of value of movable property p .………………………………..

Immovable property – description

and value p .………………………………..

Proof of value of immovable property p .………………………………..

Calculation of dividend to creditors p .………………………………..

Attorney‟s fees for application p .………………………………..

Valuator‟s fees p .………….……………………………..

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APPENDICES The Companies Amendment Act 2011 (Act No 3 of 2011 was assented to by the

President on 19 April 2011. This Act amended the Companies Act 2008 (Act No 71 of

2008) (“the 2008 Act”), extensively.

On 26 April 2011 in terms of Proclamation No 32, 2011 published in Government Gazette

No 34239 the President determined that the 2008 Act shall come into force on 1 May

2011.

The courts are still to interpret and apply the provisions of the 2008 Act. Before that has

been done no directives will be included in this manual dealing with Company and Close

Corporation matters as a manual is not intended to direct the courts how to deal with new

Acts. The manual rather informs practitioners how acts or parts thereof are interpreted or

applied by the courts. In due course consideration will be given to the inclusion of

chapters in this practice directive dealing with company matters.

The 2008 Act repeals the Companies Act 1973 (Act No 61 of 1973) (“the 1973 Act “), save

for the transitional arrangements set out in schedule 5 of the 2008 Act. Section 9 of

schedule 5 provides for the continued application of the 1973 Act to winding-up and

liquidation applications.

Appendix 1 will therefore deal with applications for the liquidation of companies.

Appendix 2 will deal with enquiries in terms of section 417 of the 1973 Act.

The National Credit Act 2005, (No 34 of 2005) is at present receiving much attention from

the courts. A full court is to be constituted in the very near future in this division to deal

with some provisions of the National Credit Act 2005. The National Credit Act 2005 will be

dealt with in Appendix 3. As the case law develops on the National Credit Act the

appendix will be updated.

In the judgment in the case of Elsie Gundwana v Steko Development CC and others, case

CCT 44/10 delivered on 11 April 2011, The Constitutional Court declared “that it is

unconstitutional for a registrar of a High Court to declare immovable property specially

executable when ordering default judgment under rule 31(5) of the Uniform Rules of Court

to the extent that this permits the sale in execution of the house of a person.” Urgent

measures were taken by the courts to deal with a substantial number of applications for

default judgments which had previously been dealt with by the registrar.

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On 24 December 2010 rule 46(1)(a)(ii) of the Uniform Rules of Court were amended to

provide that where immovable property of a judgment debtor has been declared specially

executable and it is the primary residence of such judgment debtor, no writ of execution

against such immovable property shall issue unless the court, having considered all the

relevant circumstances, orders execution against such property. It is expected that the

courts will develop guidelines for such authorisation.

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APPENDIX I - LIQUIDATION

1. The applicant shall seek a final winding-up order in the notice of motion.

2. The court may nonetheless in the exercise of its discretion grant a provisional

order and direct that service and publication of the provisional order be effected.

3. The service referred to in paragraph 2 may include:

3.1 Service of the order on the company or close corporation at its registered

office.

3.2 Publication of the order in the Government Gazette.

3.3 Publication of the order in a newspaper circulating in the area where the

company or close corporation carries on business.

3.4 Service on all known creditors. This will only be ordered where the

applicant has ready access to the identities and addresses of the

creditors. Depending on the information that the applicant has as to the

creditors‟ addresses such service can be ordered to be effected by e-

mail, facsimile transmission or pre-paid registered post.

4. If a provisional order for liquidation is granted, proof of compliance with the service

ordered must be provided on the return date. Such proof is provided by filing an

affidavit setting out the manner in which the service ordered was complied with.

The presiding judge will only accept the affidavit of service from the bar in

exceptional circumstances made out in an affidavit.

5. If an extension of the return date of a provisional order for liquidation is sought, the

party seeking such an extension must deliver an affidavit motivating such an

extension.

6. Where a company or a close corporation seeks its own winding-up, it is not

necessary for the application or for any provisional order that may be granted to be

served on the company or close corporation.

7. Where the applicant seeking a winding-up order is a shareholder of a company or

member of a close corporation, he shall serve the application on all interested

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parties, such as a co-shareholder or joint member. Failing such service the

applicant should indicate in the founding affidavit why such service is not

necessary or undesirable.

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ANNEXURE “A” – APPENDIX I

STANDARD ORDER FOR FINAL LIQUIDATION


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:

The above mentioned respondent is hereby placed under final winding up.

BY THE COURT


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ANNEXURE “B” APPENDIX I

STANDARD ORDER FOR PROVISIONAL LIQUIDATION


LIMPOPO DIVISION

OR


CASE NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED THAT:-

1. The abovementioned respondent is hereby placed under provisional winding up.

2. All persons who have a legitimate interest are called upon to put forward their

reasons why this court should not order the final winding up of the respondent

……………….. at 10:00 or so soon thereafter as the matter may be heard.

3. A copy of this order be served on the respondent at its registered office.

4. A copy of this order to be published forthwith once in the Government Gazette.

5. A copy of this order be forthwith forwarded to each known creditor by prepaid

registered post or by electronically receipted telefax transmission.

BY THE COURT ____________ REGISTRAR

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APPENDIX II - ENQUIRIES IN TERMS OF SECTION 417 OF THE 1973 COMPANIES ACT 1. The request that the enquiry be held in secret should be fully motivated. Secrecy

will not be ordered as a matter of course.

2. Where application is made to examine a particular witness, it must be shown that

the witness in question has refused to furnish the information required of him or

her is otherwise unwilling to cooperate with the liquidator; or reasons must be

provided why it would be inadvisable or counterproductive to interview the witness

prior to a summons being served upon him/her.

3. Since the amendment of section 417 which has given the power to the Master to

hold the enquiry, any application to the court under this section must indicate

whether the Master himself has instituted an enquiry and why it is necessary to

apply to court for this purpose.

APPENDIX III - PROCEEDINGS INSTITUTED IN TERMS OF THE NATIONAL CREDIT ACT 34 OF 2005 1. In any proceedings instituted in terms of the National Credit Act 34 of 2005 in

respect of any claim to which the provisions of sections 127, 129 or 131 of the Act

apply, the summons or particulars of claim or, in motion proceedings, the founding

affidavit, must contain sufficient allegations or averments to enable the court to be

satisfied that the procedures required by those sections, read with section 130 (1)

and (2) of the Act, as may be applicable to the claim have been complied with

before the institution of the proceedings. The attention of practitioners is drawn to

paragraphs 33 to 37 of the judgment in Rossouw and Another v FirstRand Bank

Ltd 2010 (6) SA 439 (SCA).

2. In order to satisfy the court of the matters referred to in section 130(3) of the Act,

an affidavit by the credit provider must be filed when judgment is applied for.

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